<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________________
FORM 10-K / A1
AMENDMENT TO APPLICATION OR REPORT
FILED PURSUANT TO SECTION 12, 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
RPS REALTY TRUST
(Exact name of registrant as specified in charter)
The undersigned registrant hereby amends the following items,
financial statements, exhibits or other portions of the Annual Report on Form
10-K for the fiscal year ended December 31, 1994 as set forth in the pages
attached hereto:
Item 14. Exhibits, Financial Statement Schedules and Reports on
Form 8-K
(a)(3) Exhibits
10.28 Indenture of Lease, dated March 2,
1995 between Sage Realty Corporation
and RPS Realty Trust together with
related side letters.
10.29 Agreement, dated as of March 1, 1995,
between RPS Realty Trust and Herbert
Liechtung
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this amendment to be signed on its behalf by the
undersigned, thereunto duly authorized.
RPS REALTY TRUST
(Registrant)
Date: April 6, 1995 By: /s/Edwin R. Frankel
---------------------------
Edwin R. Frankel
Senior Vice President, Treasurer
(Principal Financial and
Accounting Officer)
<PAGE> 2
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form
8-K.
Financial Statements, Schedules and Exhibits
(a)(1) Financial Statements
See pages FS-2 through FS-21, which are included herein.
(a)(2) Financial Statement Schedules
All schedules have been omitted because they are inapplicable,
not required, or the information is included in the financial
statements or notes thereto.
(a)(3) Exhibits Sequential
Page No.
----------
3.1 Amended and Restated Declaration of Trust of the
Trust, dated October 14, 1988, incorporated by
reference to Exhibit 3, 4(a) to the Trust's
Registration Statement on Form S-4, File No.
33-25272.
3.2 By-Laws of the Trust adopted December 6, 1989,
incorporated by reference to Exhibit 4.2 to the
Trust's Current Report on Form 8-K, dated
December 6, 1989.
4. Rights Agreement dated as of December 6, 1989
between the Trust and American Stock Transfer &
Trust Company, incorporated by reference to
Exhibit 1 to the Trust's Registration Statement
on Form 8-A, File No. 1-10093, for the
registration of Share Purchase Rights.
10.1 Exchange Agreement, dated as of November 1, 1988
between the Trust and RPS 1, incorporated by
reference to Exhibit 2A to the Trust's Current
Report on Form 8-K, dated December 28, 1988.
10.2 Exchange Agreement dated as of November 1, 1988
between the Trust and RPS 2, incorporated by
reference to Exhibit 2B to the Trust's Current
Report on Form 8-K, dated December 28, 1988.
10.3 Exchange Agreement, dated as of November 1, 1988
between the Trust and RPS 3, incorporated by
reference to Exhibit 2C to the Trust's Current
Report on Form 8-K, dated December 28, 1988.
10.4 Exchange Agreement, dated as of November 1, 1988
between the Trust and RPS 4, incorporated by
reference to Exhibit 2D to the Trust's Current
Report on Form 8-K, dated December 28, 1988.
10.5 Asset and Stock Purchase Agreement dated as of
November 1, 1988 among Integrated, RPS Advisory
Corp., Resources Pension Advisory Corp. and the
Trust, including as exhibits: (i) Note Issuance
Agreement, dated as of December 28, 1988, by and
between Integrated, Resources Pension Advisory
Corp., and the Trust; and (ii) Note of the Trust
dated December 28, 1988, incorporated by
reference to Exhibit 2E to the Trust's Current
Report on Form 8-K, dated December 28, 1988.
<PAGE> 3
10.6 Employment Agreement, dated October 24, 1988,
between Resources Pension Advisory Corp. and Joel
Pashcow, incorporated by reference to Exhibit
10.6 to the Trust's Annual Report on Form 10-K
for the year ended December 31, 1988.
10.7 Employment Agreement, dated October 24, 1988,
between Resources Pension Advisory Corp. and
Herbert Liechtung, incorporated by reference to
Exhibit 10.7 to the Trust's Annual Report on Form
10-K for the year ended December 31, 1988.
10.8 1989 Trustees' Stock Option Plan, incorporated
by reference to Exhibit A to the Trust's Proxy
Statement dated October 18, 1989.
10.9 1989 Employees' Stock Option Plan, incorporated
by reference to Exhibit B to the Trust's Proxy
Statement dated October 18, 1989.
10.10 Retirement Savings Plan of the Trust dated
September 13, 1989 incorporated by reference to
the Trust's Annual Report on Form 10-K for the
year ended December 31, 1989.
10.11 Secured Promissory Note, dated February 23, 1990,
executed by Rector Hylan Corporation,
incorporated by reference to Exhibit 10.1 to the
Trust's Current Report on Form 8-K dated February
23, 1990.
10.12 Collateral Assignment of Mortgage and Security
Agreement, dated February 23, 1990, between
Rector Hylan Corporation and the Trust,
incorporated by reference to Exhibit 10.2 to the
Trust's Current Report on Form 8-K dated February
23, 1990.
10.13 Note Purchase Agreement, dated December 27, 1991,
between the Trust and The Capitol Life Insurance
Company, incorporated by reference to Exhibit
10.13 to the Trust's Annual Report on Form 10-K
for the year ended December 31, 1991.
10.14 Reissued Note Number 5, dated December 28, 1992,
executed by the Trust in favor of Anchor National
Life Insurance Company, incorporated by reference
to Exhibit 10.14 to the Trust's Annual Report on
Form 10-K for the year ended December 31, 1993.
10.15 Loan Purchase Agreement dated December 3, 1993
between the Trust and Merged Centers,
incorporated by reference to Exhibit 10.15 to the
Trust's Annual Report on Form 10-K for the year
ended December 31, 1993.
10.16 Agreement dated as of January 25, 1994, among the
Trust, Rector Hylan Corporation, Rector
Acquisition Corp. and Shalva Company, Inc.,
incorporated by reference to Exhibit 10.16 to the
Trust's Annual Report on Form 10-K for the year
ended December 31, 1993.
<PAGE> 4
10.17 Assignment of Mortgages dated January 25, 1994
between Rector Hylan Corporation and the Trust.
10.18 Certificate of Reduction of Debt dated January
25, 1995, executed by the Trust.
10.19 Agreement of Sale dated May 20, 1993 between
Morristown-Chester Plaza Associates, L.P. and
Chester Plaza Shops, Inc., as contemplated by an
amendment thereto dated July 11, 1994.
10.20 Bargain and Sale Deed dated July 11, 1994
between Morristown-Chester Plaza Associates, L.P.
and Chester Plaza Shops, Inc.
10.21 Settlement Agreement dated as of June, 1994
between the Trust and Norgate Plaza Limited
Partnership.
10.22 Addendum to Settlement Agreement dated June, 1994
between the Trust and Norgate Plaza Limited
Partnership.
10.23 Purchase Agreement dated June, 1994 between
Norgate Plaza Limited Partnership and Norgate
Shops Corp.
10.24 Addendum to Purchase Agreement dated June, 1994
between Norgate Shops Corp. and Norgate Plaza
Limited Partnership.
10.25 Quitclaim Deed dated June 13, 1994 between
Norgate Plaza Limited Partnership and Norgate
Shops Corp.
10.26 Letter of Intent dated July 14, 1994 between the
Trust and Ramco-Gershenson, Inc. (incorporated by
reference to Exhibit 99 to the Trust's Current
Report on Form 8-K dated July 28, 1994).
10.27 Letter Agreement dated as of June 8, 1994
between the Trust and Dean Witter Reynolds, Inc.
10.28 Indenture of Lease, dated March 2, 1995
between Sage Realty Corporation and RPS Realty
Trust together with related side letters.*
_________________
* Filed with this amendment.
<PAGE> 5
10.29 Agreement, dated as of March 1, 1995, between
RPS Realty Trust and Herbert Liechtung.*
23.1 Consent of Independent Auditors with respect to
the Trust's Registration Statement on Form S-3,
filed with the Commission on April 25, 1989.
23.2 Consent of Independent Auditors with respect to
the Trust's Registration Statement on Form S-8,
filed with the Commission on November 22, 1990.
28.1 Distribution Reinvestment and Trust Agreement,
including Distribution Reinvestment Plan, made as
of January 1, 1991 between the Trust and American
Stock Transfer and Trust Company, incorporated by
reference to Exhibit 28.1 to the Trust's Annual
Report on Form 10-K for the year ended December
31, 1990.
28.2 Description of Rector Hylan loan, incorporated by
reference into Item 1. of this Report from the
Trust's Current Report on Form 8-K dated February
23, 1990.
(b) Reports on Form 8-K filed during the last quarter
of the fiscal year: None.
____________________
* Filed with this amendment.
<PAGE> 6
EXHIBIT INDEX
Sequential
Number Exhibit Page No.
- ------ ------- ----------
3.1 Amended and Restated Declaration of Trust of
the Trust, dated October 14, 1988, incorporated
by reference to Exhibit 3, 4(a) to the Trust's
Registration Statement on Form S-4, File No.
33-25272.
3.2 By-Laws of the Trust adopted December 6, 1989,
incorporated by reference to Exhibit 4.2 to the
Trust's Current Report on Form 8-K, dated
December 6, 1989.
4. Rights Agreement dated as of December 6, 1989
between the Trust and American Stock Transfer &
Trust Company, incorporated by reference to
Exhibit 1 to the Trust's Registration Statement
on Form 8-A, File No. 1-10093, for the
registration of Share Purchase Rights.
10.1 Exchange Agreement, dated as of November 1,
1988 between the Trust and RPS 1, incorporated
by reference to Exhibit 2A to the Trust's
Current Report on Form 8-K, dated December 28,
1988.
10.2 Exchange Agreement dated as of November 1, 1988
between the Trust and RPS 2, incorporated by
reference to Exhibit 2B to the Trust's Current
Report on Form 8-K, dated December 28, 1988.
10.3 Exchange Agreement, dated as of November 1, 1988
between the Trust and RPS 3, incorporated by
reference to Exhibit 2C to the Trust's Current
Report on Form 8-K, dated December 28, 1988.
10.4 Exchange Agreement, dated as of November 1, 1988
between the Trust and RPS 4, incorporated by
reference to Exhibit 2D to the Trust's Current
Report on Form 8-K, dated December 28, 1988.
10.5 Asset and Stock Purchase Agreement dated as of
November 1, 1988 among Integrated, RPS Advisory
Corp., Resources Pension Advisory Corp. and the
Trust, including as exhibits: (i) Note Issuance
Agreement, dated as of December 28, 1988, by and
between Integrated, Resources Pension Advisory
Corp., and the Trust; and (ii) Note of the Trust
dated December 28, 1988, incorporated by
reference to Exhibit 2E to the Trust's Current
Report on Form 8-K, dated December 28, 1988.
<PAGE> 7
Sequential
Number Exhibit Page No.
- ------ ------- ----------
10.6 Employment Agreement, dated October 24, 1988,
between Resources Pension Advisory Corp. and
Joel Pashcow, incorporated by reference to
Exhibit 10.6 to the Trust's Annual Report on
Form 10-K for the year ended December 31, 1988.
10.7 Employment Agreement, dated October 24, 1988,
between Resources Pension Advisory Corp. and
Herbert Liechtung, incorporated by reference to
Exhibit 10.7 to the Trust's Annual Report on
Form 10-K for the year ended December 31, 1988.
10.8 1989 Trustees' Stock Option Plan, incorporated
by reference to Exhibit A to the Trust's Proxy
Statement dated October 18, 1989.
10.9 1989 Employees' Stock Option Plan, incorporated
by reference to Exhibit B to the Trust's Proxy
Statement dated October 18, 1989.
10.10 Retirement Savings Plan of the Trust dated
September 13, 1989 incorporated by reference to
the Trust's Annual Report on Form 10-K for the
year ended December 31, 1989.
10.11 Secured Promissory Note, dated February 23, 1990,
executed by Rector Hylan Corporation,
incorporated by reference to Exhibit 10.1 to the
Trust's Current Report on Form 8-K dated
February 23, 1990.
10.12 Collateral Assignment of Mortgage and Security
Agreement, dated February 23, 1990, between
Rector Hylan Corporation and the Trust,
incorporated by reference to Exhibit 10.2 to the
Trust's Current Report on Form 8-K dated
February 23, 1990.
10.13 Note Purchase Agreement, dated December 27,
1991, between the Trust and The Capitol Life
Insurance Company, incorporated by reference to
Exhibit 10.13 to the Trust's Annual Report on
Form 10-K for the year ended December 31, 1991.
10.14 Reissued Note Number 5, dated December 28,
1992, executed by the Trust in favor of Anchor
National Life Insurance Company, incorporated by
reference to Exhibit 10.14 to the Trust's Annual
Report on Form 10-K for the year ended December
31, 1993.
<PAGE> 8
Sequential
Number Exhibit Page No.
- ------ ------- ----------
10.15 Loan Purchase Agreement dated December 3, 1993
between the Trust and Merged Centers,
incorporated by reference to Exhibit 10.15 to
the Trust's Annual Report on Form 10-K for the
year ended December 31, 1993.
10.16 Agreement dated as of January 25, 1994, among
the Trust, Rector Hylan Corporation, Rector
Acquisition Corp. and Shalva Company, Inc.,
incorporated by reference to Exhibit 10.16 to
the Trust's Annual Report on Form 10-K for the
year ended December 31, 1993.
10.17 Assignment of Mortgages dated January 25, 1994
between Rector Hylan Corporation and the Trust.
10.18 Certificate of Reduction of Debt dated January
25, 1995, executed by the Trust.
10.19 Agreement of Sale dated May 20, 1993 between
Morristown- Chester Plaza Associates, L.P. and
Chester Plaza Shops, Inc., as amended by an
amendment thereto dated July 11, 1994.
10.20 Bargain and Sale Deed dated July 11, 1994 between
Morristown- Chester Plaza Associates, L.P. and
Chester Plaza Shops, Inc.
10.21 Settlement Agreement dated as of June, 1994
between the Trust and Norgate Plaza Limited
Partnership.
10.22 Addendum to Settlement Agreement dated June,
1994 between the Trust and Norgate Plaza Limited
Partnership.
10.23 Purchase Agreement dated June, 1994 between
Norgate Plaza Limited Partnership and Norgate
Shops Corp.
10.24 Addendum to Purchase Agreement dated June, 1994
between Norgate Shops Corp. and Norgate Plaza
Limited Partnership.
10.25 Quitclaim Deed dated June 13, 1994 between
Norgate Plaza Limited Partnership and Norgate
Shops Corp.
10.26 Letter of Intent dated July 14, 1994 between
the Trust and Ramco-Gershenson, Inc.
(incorporated by reference to Exhibit 99 to the
Trust's Current Report on Form 8-K dated July
28, 1994).
10.27 Letter Agreement dated as of June 8, 1994
between the Trust and Dean Witter Reynolds, Inc.
<PAGE> 9
Sequential
Number Exhibit Page No.
- ------ ------- ----------
10.28 Indenture of Lease, dated March 2, 1995 between
Sage Realty Corporation and RPS Realty Trust
together with related side letters.*
10.29 Agreement, dated as of March 1, 1995, between
RPS Realty Trust and Herbert Liechtung.*
23.1 Consent of Independent Auditors with respect to
the Trust's Registration Statement on Form S-3,
filed with the Commission on April 25, 1989.
23.2 Consent of Independent Auditors with respect to
the Trust's Registration Statement on Form S-8,
filed with the Commission on November 22, 1990.
28.1 Distribution Reinvestment and Trust Agreement,
including Distribution Reinvestment Plan, made
as of January 1, 1991 between the Trust and
American Stock Transfer and Trust Company,
incorporated by reference to Exhibit 28.1 to the
Trust's Annual Report on Form 10-K for the year
ended December 31, 1990.
28.2 Description of Rector Hylan loan, incorporated
by reference into Item 1. of this Report from
the Trust's Current Report on Form 8-K dated
February 23, 1990.
___________________________
* Filed with this amendment.
<PAGE> 1
EXHIBIT 10.28
<PAGE> 2
SAGE REALTY CORPORATION, AGENT
LANDLORD
and
RPS REALTY TRUST
TENANT
INDENTURE OF LEASE
PREMISES: Part of the 10th Floor
747 Third Avenue
New York, New York 10017
<PAGE> 3
TABLE OF CONTENTS
Article Page
- ------- ----
1 DEFINITIONS, TERM . . . . . . . . . . . . . . . . . . . . . . . . . 1
2 COMMENCEMENT OF TERM . . . . . . . . . . . . . . . . . . . . . . . . 2
3 FIXED RENT, ADDITIONAL RENTS AND RENT ADJUSTMENTS . . . . . . . . . 3
A. Operating Expense Adjustment . . . . . . . . . . . . . . . 5
B. Real Estate Tax Adjustment . . . . . . . . . . . . . . . . 5
4 ELECTRICITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5 USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6 REPAIRS, ALTERATIONS AND LIENS . . . . . . . . . . . . . . . . . . . 12
7 FLOOR LOAD, NOISE, WINDOW CLEANING . . . . . . . . . . . . . . . . . 17
8 LAWS, ORDINANCES, REQUIREMENTS OF PUBLIC AUTHORITIES . . . . . . . . 17
9 INSURANCE, PROPERTY LOSS, REIMBURSEMENT . . . . . . . . . . . . . . 18
10 DAMAGE OR DESTRUCTION BY FIRE OR OTHER CAUSE . . . . . . . . . . . . 21
11 ASSIGNMENT, SUBLETTING, MORTGAGING . . . . . . . . . . . . . . . . . 23
12 NO LIABILITY ON LANDLORD . . . . . . . . . . . . . . . . . . . . . . 27
13 MOVING OF HEAVY EQUIPMENT . . . . . . . . . . . . . . . . . . . . . 28
14 CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
15 ENTRY, RIGHT TO CHANGE PUBLIC PORTIONS OF THE BUILDING . . . . . . . 29
16 BANKRUPTCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
17 DEFAULTS AND REMEDIES AND WAIVER OF REDEMPTION . . . . . . . . . . . 32
18 LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS . . . . . . . . . . 35
19 COVENANT OF QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . 35
20 EXCAVATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
21 SERVICES AND EQUIPMENT . . . . . . . . . . . . . . . . . . . . . . . 36
22 DEFINITION OF LANDLORD . . . . . . . . . . . . . . . . . . . . . . . 40
23 INVALIDITY OF ANY PROVISION . . . . . . . . . . . . . . . . . . . . 41
24 BROKER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
25 SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
<PAGE> 4
26 ESTOPPEL CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . 43
27 LEGAL PROCEEDINGS, WAIVER OF JURY TRIAL . . . . . . . . . . . . . . 43
28 SURRENDER OF PREMISES/HOLDOVER . . . . . . . . . . . . . . . . . . . 44
29 RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . 45
30 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
31 NO WAIVER: ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . 46
32 CAPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
33 INABILITY TO PERFORM . . . . . . . . . . . . . . . . . . . . . . . . 47
34 NO REPRESENTATION BY LANDLORD . . . . . . . . . . . . . . . . . . . 47
35 NAME OF BUILDING . . . . . . . . . . . . . . . . . . . . . . . . . . 48
36 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . . . 48
37 DEFERRED COLLECTIONS . . . . . . . . . . . . . . . . . . . . . . . . 48
38 FEES/INTEREST/LATE CHARGES . . . . . . . . . . . . . . . . . . . . . 48
39 ABATEMENT OF RENT . . . . . . . . . . . . . . . . . . . . . . . . . 49
40 TENANT'S EXTENSION OPTION . . . . . . . . . . . . . . . . . . . . . 49
Schedule A Floor Plan
Schedule B Intentionally Omitted
Schedule C Rules and Regulations
ii
<PAGE> 5
INDENTURE OF LEASE made as of this ____ day of February, 1995,
between SAGE REALTY CORPORATION, a New York corporation having its principal
office at 777 Third Avenue, New York, New York 10017, Agent for the owner of
the Building hereinafter mentioned (herein "Landlord"), and RPS REALTY TRUST, a
Massachusetts business trust having its office at 733 Third Avenue, New York,
New York 10017 (herein "Tenant").
W I T N E S S E T H:
ARTICLE 1
DEFINITIONS, TERM
Section 1.01. The terms defined in this Article shall, for
all purposes of this Lease and all agreements supplemental thereto, have the
meanings herein specified unless the context otherwise requires.
(a) "Building" shall mean the office building
known as 747 Third Avenue, in the Borough of Manhattan, City and State of New
York. The plot of land on which the Building is erected is hereinafter called
the "Land."
(b) "Business Days" shall mean all days excluding
Saturdays, Sundays and days observed by the State of New York or Federal
Government as legal holidays, and further excluding holidays established by any
union contract applicable to employees at the Building.
(c) "Commencement Date" shall have the meaning
set forth in Section 2.02.
(d) "Demised Premises" shall mean a portion of
the tenth (10th) floor of the Building, as shown on the Floor Plan annexed
hereto as Schedule A and made a part of this Lease, including all fixtures and
equipment which at the Commencement Date or during the Term of this Lease are
attached thereto and which become a part thereof.
(e) "Expiration Date" shall mean April 30, 1996
or any sooner date of termination pursuant to the provisions hereof.
(f) "Fixed Rent" shall mean the annual rental
payable by Tenant for the Demised Premises in equal monthly installments as
provided for in Article 3 of this Lease.
(g) "Interest Rate" shall mean the lesser of (i)
2% above the prime commercial lending rate of Marine Midland Bank, N.A. in
effect from time to time or (ii) the maximum applicable legal rate, if any.
(h) "Lease" shall mean this Indenture of Lease
and any and all Schedules annexed hereto.
(i) "Lease" shall mean this Indenture of Lease
and any and all Schedules annexed hereto.
(j) "Term of this Lease" and "Term" shall mean
the term of years commencing on the Commencement Date and expiring on the
Expiration Date, subject to the terms and conditions hereinafter set forth.
Section 1.02. Landlord hereby leases to Tenant, and Tenant
hereby rents from Landlord, the Demised Premises, subject to the provisions
hereinafter set forth, together with appurtenances, including the right to use
in common with others the lobbies, elevators and other public portions of the
Building.
TO HAVE AND TO HOLD unto Tenant, its successors and permitted
assigns, for the Term of this Lease or until the Term of this Lease sooner
terminates as hereinafter provided.
<PAGE> 6
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ARTICLE 2
COMMENCEMENT OF TERM
Section 2.01. Tenant acknowledges that it has examined the
Demised Premises and is taking same "as is" as of the Commencement Date.
Tenant acknowledges that Landlord is not required to do any work with respect
thereto.
Section 2.02. The Term of this Lease and the payment of
rent (subject to the terms of Article 39 hereof) shall commence on April 1,
1995 (herein the "Commencement Date").
The taking of possession by Tenant of the Demised Premises
shall be deemed an acceptance of same by Tenant. Such taking of possession
shall also be conclusive evidence, as against Tenant, that the Demised Premises
and the Building of which the same form a part were in good and satisfactory
condition at the time of such occupancy and that the Demised Premises were
substantially as shown on Schedule A.
Section 2.03. If Landlord shall be unable to give
possession of the Demised Premises on the date anticipated for the commencement
of the Term hereof for any reason whatsoever, Landlord shall not be subject to
any liability, nor shall the validity of this Lease nor the obligations of
Tenant hereunder be thereby affected. Without limiting the foregoing, the
parties hereto expressly negate the provisions of Section 223-a of the Real
Property Law and agree that such Section shall be inapplicable hereto. Tenant
agrees that the provisions of this Article are intended to constitute "an
express provision to the contrary" within the meaning of Section 223-a. If by
reason of such delay, the Term of this Lease shall commence subsequent to such
anticipated date, the Term of this Lease shall be deemed extended for the same
period.
ARTICLE 3
FIXED RENT, ADDITIONAL RENTS AND RENT ADJUSTMENTS
Section 3.01. During the Term of this Lease, Tenant shall
pay, at Landlord's address as herein set forth, or at such other address that
Landlord may from time to time designate, a Fixed Rent payable in lawful money
of the United States of America (by check of Tenant drawn on a bank that is a
member of the New York Clearinghouse Association) in equal monthly installments
in advance on the first day of each calendar month, without notice or demand,
and without setoff or deduction whatsoever at the annual rate (subject to
adjustment pursuant to Article 4 hereof) of $159,992.70 during the period
beginning on the Commencement Date and continuing through the balance of the
Term.
If Tenant's obligation to pay Fixed Rent shall commence on a
date other than the first day of a calendar month, the first installment of
Fixed Rent shall be in an amount equal to that required to cover the period up
to and including the last day of the month wherein the obligation to pay Fixed
Rent occurs, computed on a per diem basis.
Section 3.02. The Fixed Rent does not take into account
increases of real estate taxes and/or expenses during the Term of this Lease or
other adjustments in rent, or other payments to be made by Tenant, during the
Term of this Lease. Provision therefor is hereinafter made.
Section 3.03. All costs, expenses, adjustments and payments
which Tenant is obligated to pay to Landlord pursuant to this Lease and/or its
Schedules shall be deemed additional rent whether or not denominated as such
and, in the event of nonpayment thereof, Landlord shall have all rights and
remedies with respect thereto as herein provided for in case of nonpayment of
Fixed Rent.
Tenant covenants and agrees to pay the Fixed Rent and
additional rent as in this Lease provided, when due.
Section 3.04. For the purposes of this Section 3.04, the
following definitions shall apply:
<PAGE> 7
- 3 -
(a) The term "Base Tax Year" as hereinafter set
forth for the determination of real estate tax escalation shall mean the period
commencing on July 1, 1995 and ending on June 30, 1996.
(b) The term "the Percentage" shall mean 1.35%.
(c) The term "Real Estate Taxes" shall mean all
real estate taxes, assessments, water and sewer rents, governmental levies,
county taxes or any other governmental charges, general or special, ordinary or
extraordinary, unforeseen as well as foreseen, of any kind or nature
whatsoever, which are or may be assessed or imposed upon the Land, the Building
and the sidewalks, plazas or streets in front of or adjacent thereto, including
any tax, excise or fee measured by or payable with respect to any rent, and
levied against Landlord and/or the Land and/or Building, under the laws of the
United States, the State of New York, or any political subdivision thereof, or
by the City of New York, or any political subdivision thereof. If, due to a
future change in the method of taxation or in the taxing authority, a
franchise, income, transit, profit or other tax or governmental imposition,
however designated, shall be levied against Landlord, and/or the Land and/or
the Building, in substitution in whole or in part for said Real Estate Taxes,
or in lieu of additional real estate taxes, then such franchise, income,
transit, profit or other tax or governmental imposition shall be deemed to be
included within the definition of "Real Estate Taxes" for the purposes hereof.
(d) The term "Tax Year" shall mean every
twelve-month consecutive period commencing each July 1st during the Term of
this Lease.
(e) The term "Wage Rate" shall mean the minimum
regular hourly wage rate plus all other sums, including, but not limited to,
sums paid for pensions, welfare funds, vacations, bonuses, social security
unemployment, disability benefits, health, life, accident and other type of
insurance required to be paid to or for the benefit of employees engaged in the
general maintenance and operation of office buildings of the type in the
vicinity of the Building pursuant to a collective bargaining agreement
(designated as "Others" in said agreement) between Realty Advisory Board on
Labor Relations, Inc. (or any successor thereto) and Local 32B/32J of the
Building Service Employees International Union AFL-CIO (or any successor
thereto). The Wage Rate is intended to be an index in the nature of a cost of
living index, and is not intended to reflect the actual costs of wages or
expenses for the Building. If any such agreement is not entered into, or such
parties or their successors shall cease to bargain collectively, then the Wage
Rate shall be the minimum regular hourly wage rate and other sums as aforesaid
payable to or for the benefit of employees engaged in the maintenance and
operation of first class office buildings of the same general type as the
Building in the Manhattan area.
(f) The term "Base Wage Rate" shall mean the Wage
Rate in effect on January 1, 1995.
(g) The term "Wage Rate Factor" shall mean 4,863.
A. Operating Expense Adjustment
It is agreed that if at any time the Wage Rate shall be
greater than the Base Wage Rate, Tenant shall be required to pay to Landlord as
additional rent an "Operating Expense Adjustment" in an annual sum equal to the
product obtained by multiplying (i) the number of cents (including any fraction
of a cent) by which the Wage Rate exceeds the Base Wage Rate by (ii) the Wage
Rate Factor by (iii) 80%. Such Operating Expense Adjustment shall be payable
to Landlord together with Fixed Rent in equal monthly installments on the first
day of each calendar month commencing with the first month during the Term of
this Lease in which the Wage Rate shall be greater than the Base Wage Rate and,
as billed by Landlord, continuing thereafter until a new adjustment in the
additional rent shall be established and become effective in accordance with
the provisions of this paragraph. Notwithstanding any change in Wage Rate
downwards, the Fixed Rent shall not be reduced. In the event any change in the
Wage Rate shall be made retroactive, Tenant shall pay Landlord the amount of
any resulting retroactive adjustment in such additional rent within fifteen
(15) days after being billed therefor. Notwithstanding the foregoing, Tenant's
obligation to pay any installment of the Operating Expense Adjustment as
provided herein shall not commence until April 1, 1996.
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B. Real Estate Tax Adjustment
In the event that the Real Estate Taxes payable for any Tax
Year shall exceed the amount of such Real Estate Taxes, as finally determined,
payable with respect to the Base Tax Year, Tenant shall pay to Landlord, as
additional rent ("Tenant's Tax Payment") for such Tax Year, an amount equal to
the Percentage of the excess. By or after the start of the Tax Year following
the Base Tax Year, and by or after the start of each Tax Year thereafter,
Landlord shall furnish to Tenant a statement of the Real Estate Taxes payable
with respect to such Tax Year, and a statement of the Real Estate Taxes payable
during the Base Tax Year.
Within thirty (30) days after the issuance by the governmental
authority having jurisdiction thereover of tax bills for Real Estate Taxes
assessed, levied and/or imposed upon the Land and Building for any Tax Year,
Landlord shall submit to Tenant a photostatic copy of such bill and/or bills
and thereafter on or about each respective anniversary date shall submit a copy
of the tax bill and/or bills for the Real Estate Taxes assessed, levied or
imposed upon the Land and Building for such Tax Year, together with a statement
which shall indicate the amount, if any, of Tenant's Tax Payment. Landlord's
failure to submit copies of bills as aforesaid shall not be considered a
default by Landlord or a defense by Tenant to such tax payment.
Within thirty (30) days after the issuance of the statement,
Tenant shall pay Tenant's Tax Payment in the amount set forth on such
statement. Such statement shall be conclusively deemed binding upon Tenant
unless Tenant shall have objected thereto in writing within thirty (30) days of
receipt thereof. Notwithstanding the foregoing provisions of this paragraph,
Tenant's Tax Payment shall be payable in the same number of installments as
Real Estate Taxes are payable to the taxing authority and shall be payable not
less than thirty (30) days in advance of the date on which the corresponding
installment is due such taxing authority without incurring any penalty,
interest or late charge.
In the event Landlord shall receive a final reduction or
refund of Real Estate Taxes for any Tax Year for which Tenant is obligated to
pay any additional rent under the provisions of this subsection B of Section
3.04, the amount or the proceeds of such reduction or refund, less legal fees
and other expenses incurred in collecting the same or achieving such reduction,
shall be applied and allocated to the periods for which such final reduction or
refund was obtained, and proper adjustment shall be made between Landlord and
Tenant. Tenant has been advised that proceedings to protest the Real Estate
Tax Assessment for the Base Tax Year may have been filed and may result in a
reduction of Real Estate Taxes for the Base Tax Year.
Any payments or refunds due hereunder for any period of less
than a full Tax Year at the commencement or end of the Term of this Lease shall
be equitably prorated to reflect such event.
In addition to Tenant's obligation to pay Tenant's Tax Payment
as aforesaid, Tenant shall pay to Landlord as additional rent payable upon
demand, any occupancy tax or rent tax now in effect or hereafter enacted, if
payable by Landlord in the first instance or hereafter required to be paid by
Landlord.
Section 3.05. Upon the date of the expiration or any sooner
termination of this Lease, whether the same be the date hereinabove set forth
as the expiration of the Term of this Lease or any prior or subsequent date, a
proportionate share of the Fixed Rent, adjustments and additional rents for the
year (calendar or fiscal) in which such expiration or termination occurs, shall
immediately become due and payable by Tenant to Landlord as hereinafter
provided, if not theretofore already billed and paid. Such proportionate share
shall be based upon the length of time that this Lease shall have been in
existence during such year. Promptly after any such expiration or termination,
Landlord shall compute the amounts due from Tenant, as aforesaid, which
computations shall either be based on that year's actual figures or be an
estimate based on the most recent statements theretofore prepared by Landlord
and furnished to Tenant pursuant to this Lease. If an estimate is used, then
Landlord shall promptly cause statements to be prepared on the basis of the
comparative year's actual figures as soon as they are available, and within ten
(10) days after such statement or statements are prepared by Landlord and
furnished to Tenant, Landlord and Tenant shall make appropriate adjustments of
any estimated payments theretofore made.
Tenant's obligation to pay any and all rents, adjustments and
additional rents under this Lease shall continue and shall cover all periods up
to the Expiration Date. Landlord's and Tenant's obligations to make
<PAGE> 9
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the adjustments hereinabove referred to shall survive any expiration or
termination of this Lease. Any delay or failure of Landlord in billing any
Fixed Rent or additional rent herein provided for shall not constitute a waiver
of or in any way impair the continuing obligation of Tenant to pay such rent
adjustments hereunder.
Section 3.06. Landlord and Tenant hereby agree that there
shall be no additional rent due under Section 3.04 hereof during the initial
Term of this Lease.
ARTICLE 4
ELECTRICITY
Section 4.01. The Fixed Rent reserved in this Lease
includes the agreed sum of $14,102.70 per annum in consideration of which
Landlord, as an additional service, will supply Tenant with electricity for
normal use in the Demised Premises between the hours 9:00 A.M. and 5:30 P.M. on
Business Days. If Landlord's electric rates (i.e., the public utility rate
schedule at the time in question, including all surcharges, taxes, fuel
adjustments, taxes regularly passed on to consumers by the public utility, and
other sums payable in respect thereof for the supply of electric energy to
Landlord for the Building) are increased, the Fixed Rent reserved in this Lease
shall be adjusted by applying to the sum specified above, the same percentage
as such rate increase, and such adjusted Fixed Rent shall be billed by
Landlord to Tenant, with effect as of the date of the increase of Landlord's
electric rate. Landlord shall not be liable in any way to Tenant for any
failure or defect in the supply or character of electric energy furnished to
the Demised Premises by reason of any requirement, act or omission of the
public utility serving the Building with electricity or for any other reason
not attributable to the Landlord. At Landlord's option, Tenant shall purchase
from the Landlord or Landlord's agent all lighting tubes, lamps, bulbs and
ballasts used in the Demised Premises and Tenant shall pay Landlord's
reasonable charges for providing and installing same on demand, as additional
rent.
Section 4.02. Tenant's use of electric energy in the
Demised Premises shall not at any time exceed the capacity of any of the
electrical conductors, machinery and equipment in or otherwise serving the
Demised Premises. In order to insure that such capacity is not exceeded and to
avert possible adverse effect upon the Building electric service, Tenant shall
not, without Landlord's prior written consent in each instance, connect any
additional fixtures, machinery, appliances or equipment to the Building
electric distribution system or make any alteration or addition to Tenant's
machinery, appliances or equipment, or the electric system of the Demised
Premises existing on the Commencement Date other than lamps, typewriters,
copiers, computer terminals, copying machines, communications equipment such as
telephones, fax machines, appliances, and other small office machines that
consume comparable or less amounts of electricity. Should Landlord grant such
consent, all additional risers or other equipment required therefor shall be
provided by Landlord, and the cost thereof shall be paid by Tenant upon
Landlord's demand. As a condition to granting such consent, Landlord may
require Tenant to agree to an increase in the Fixed Rent by an amount which
will reflect the value to Tenant of the additional service to be furnished by
Landlord, that is, the potential additional electrical energy to be made
available to Tenant based upon the estimated additional capacity of such
additional risers or other equipment. If Landlord and Tenant cannot agree on
the amount of such increase, Tenant shall nevertheless pay the same as billed
until such amount shall be determined by an independent utility consultant to
be selected by Landlord and paid by Tenant. The determination of the
consultant shall be binding upon the parties. When the amount of such increase
is so determined, the parties shall execute an agreement supplementary hereto
to reflect such increase in the amount of the Fixed Rent stated in this Lease
and in the amount set forth in Section 4.01, effective from the date such
additional service is made available to Tenant, but such increase shall be
effective from such date even if such supplementary agreement is not executed.
Section 4.03. If there shall be an increase in the space
constituting the Demised Premises, or if Tenant's failure to maintain its
machinery and equipment in good order and repair causes greater consumption of
electrical current, or if Tenant uses electricity on days or hours other than
those specified in Section 4.01, or if Tenant adds any machinery, appliances or
equipment requiring additional electrical current, the Fixed Rent herein
reserved shall be increased accordingly. The amount of such increase shall be
billed by Landlord to Tenant, effective as of the date of the increased usage.
Such sum shall be due, and shall be paid by Tenant, as additional rent
hereunder at the time billed. If Tenant disputes the amount of such increase,
Tenant shall nevertheless pay the same as billed, and the amount shall be
determined by an independent utility
<PAGE> 10
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consultant to be selected by Landlord and paid by Tenant. The determination of
the consultant shall be binding upon the parties.
Section 4.04. Landlord reserves the right to discontinue
furnishing electric energy to Tenant in the Demised Premises at any time upon
not less than one hundred twenty (120) days prior written notice to Tenant
provided that Landlord shall have made such election as to the majority of all
tenants occupying the Building and further provided that electric service is
available directly from the public utility servicing the Building (Landlord
hereby agreeing, unless otherwise required by law, not to discontinue
furnishing electricity to Tenant until such time as Tenant is able to obtain
same directly from the public utility). If Landlord exercises such right of
termination, this Lease shall continue in full force and effect and shall be
unaffected thereby, except only that, from and after the effective date of such
termination, Landlord shall not be obligated to furnish electric energy to
Tenant and the Fixed Rent under this Lease shall be reduced by the amount set
forth in Section 4.01, plus or minus the amount of any change pursuant to
Sections 4.01, 4.02, 4.03 and 4.05. If Landlord so discontinues furnishing
electric energy to Tenant, Tenant shall arrange to obtain electric energy
directly from the public utility company furnishing electric service to the
Building. Such electric energy may be furnished to Tenant by means of the then
existing building system feeders, risers and wiring to the extent that the same
are available, suitable and safe for such purposes. All meters and additional
panel boards, feeders, risers, wiring and other conductors and equipment which
may be required to obtain electric energy directly from such public utility
company shall be installed and maintained by Tenant at its expense.
Section 4.05. Tenant covenants and agrees that at no time
will the connected electrical load serving the Demised Premises exceed 5 watts
per square foot. Should Landlord consent to an increase in the connected
electrical load, as a condition to granting such consent, Landlord may require
Tenant to agree to an increase in the Fixed Rent by an amount which will
reflect the value to Tenant of the additional connected electrical load. If
Tenant disputes the amount, Tenant shall nevertheless pay the same as billed,
and the amount shall be determined by an independent utility consultant to be
selected by Landlord and paid by Tenant. The determination of the consultant
shall be binding upon the parties.
Section 4.06. If any tax is imposed upon Landlord with
respect to electrical energy furnished as a service to Tenant by any Federal,
State or Municipal Authority, Tenant covenants and agrees that where permitted
by law or applicable regulations, Tenant's pro rata share of such taxes shall
be reimbursed by Tenant to Landlord.
Section 4.07. Landlord shall have the right to procure
periodic surveys made by an independent utility consultant selected by
Landlord and if such utility consultant determines that there has been (i) an
increase in Tenant's use of electrical current or (ii) the amount set forth in
Section 4.01 is insufficient, then, the amount set forth in Section 4.01 shall
be adjusted and in addition to the other requirements and obligations imposed
on Tenant in this Article, Tenant shall pay the fees of the utility consultant
making such survey. The findings of such utility consultant shall be binding
and conclusive upon the parties.
Section 4.08. Notwithstanding the aforesaid provisions of
this Article, if, pursuant to an action of the Public Service Commission of the
State of New York, or otherwise, submetering of electricity is permitted at the
Building, then Landlord shall have the option, at Landlord's sole cost and
expense, of installing submeters to measure Tenant's electricity consumption.
Upon installation of the submeters, Tenant's electricity consumption and demand
shall be measured by said submeters, and Tenant agrees to purchase such
electricity from Landlord or Landlord's designated agent at Landlord's electric
rates, plus twelve (12%) percent thereof to reimburse Landlord for
administrative services in connection with supplying and billing such
electricity and two and one-half (2-1/2%) percent for line loss. All such sums
shall be paid by Tenant to Landlord as additional rent hereunder. If more than
one meter measures the electricity consumption and demand of Tenant in the
Building, the service rendered through each meter shall be aggregated and
billed in accordance with the above rate classification, unless Landlord shall
elect separate billing on a per-meter basis. Landlord may at any time render
bills for Tenant's consumption and demand and Tenant shall pay the same within
thirty (30) days following the date the same are rendered. If Landlord
exercises such right of submetering, this Lease shall continue in full force
and effect and shall be unaffected thereby, except only that, from and after
the effective date of such submetering, Landlord shall not be obligated to
furnish electric energy to Tenant and the Fixed Rent
<PAGE> 11
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under this Lease shall be reduced by the amount set forth in Section 4.01, plus
or minus the amount of any change pursuant to Sections 4.01, 4.02, 4.03 and
4.05.
ARTICLE 5
USE
Section 5.01. Tenant shall use and occupy the Demised
Premises for administrative, executive and general business office purposes
only and for no other purposes.
Section 5.02. Tenant shall not suffer or permit the Demised
Premises or any part thereof to be used in any manner, or suffer or permit
anything to be done therein, or suffer or permit anything to be brought into or
kept in the Demised Premises which would in any way (i) violate any law or
requirement of public authorities, (ii) cause structural injury to the Building
or any part thereof, (iii) interfere with the normal operation of the heating,
air-conditioning, ventilating, plumbing or other mechanical or electrical
systems of the Building or the elevators installed therein, (iv) constitute a
public or private nuisance, or (v) alter the appearance of the exterior of the
Building or of any portion of the interior thereof other than the Demised
Premises.
Section 5.03. Tenant shall not, without the prior written
consent of Landlord (which shall not be unreasonably withheld or delayed),
allow a "Servicing Company" (defined below) to install any telephone, data,
information or other communications equipment in the Demised Premises to
service premises occupied by persons other than Tenant and/or its affiliates.
For example, the Demised Premises may not be used as a so-called "switching" or
"relay" station serving third parties (that is, parties other than Tenant and
its affiliates) without such consent by Landlord. In granting such consent,
Landlord may require that the Servicing Company enter into a license agreement
with Landlord confirming that the Servicing Company shall have no independent
rights in the Demised Premises and that upon termination of this Lease, for
whatever reason, the Servicing Company will have no right to leave its
equipment in the Demised Premises. Landlord may make a reasonable charge to
the Servicing Company for allowing it to install its equipment in the Demised
Premises. A "Servicing Company" shall mean a person, firm, corporation or
other entity other than Tenant whose equipment services not only the Demised
Premises, but other premises or parties as well.
ARTICLE 6
REPAIRS, ALTERATIONS AND LIENS
Section 6.01. Tenant shall take good care of the
Demised Premises and the fixtures and appurtenances and equipment therein and,
at its sole cost and expense, make all repairs thereto as and when needed to
preserve the aforesaid in good working order and condition. All damage or
injury to the Demised Premises and to its fixtures, appurtenances and equipment
or to the Building of which the same form a part, or to its fixtures,
appurtenances and equipment caused by Tenant moving property, or resulting from
any air-conditioning unit or system, any short circuit, flow or leakage of
water, steam, illuminating gas, sewer gas, sewerage or odors, or by frost or by
bursting or leaking of pipes or plumbing works or gas, or from any other cause
of any other kind or nature whatsoever due to carelessness, omission, neglect,
improper conduct or other cause of Tenant, its servants, employees, agents,
visitors or licensees, shall be repaired, restored or replaced promptly by
Tenant, at its sole cost and expense, to the satisfaction of Landlord. If
Tenant fails to make such repairs, restorations or replacements, same may be
made by Landlord at the expense of Tenant and any costs therefor shall be
collectible as additional rent or otherwise, and shall be paid by Tenant within
five (5) days after rendition of a bill or statement therefor.
Section 6.02. Landlord shall, at its expense, make all
repairs and replacements, structural and otherwise, necessary in order to keep
in good order and repair the exterior of the Building and the public portions
of the Building, the need for which Landlord shall have knowledge (including
the public halls and stairways, plumbing, wiring and other Building equipment
for the general supply of water, heat, air-conditioning, gas and electricity)
except repairs hereinabove provided to be made by Tenant and repairs, the need
for which Tenant has not reported to Landlord.
<PAGE> 12
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Section 6.03. All repairs, restorations or replacements by
either party shall be of first-class quality and done in good and workmanlike
manner. Tenant shall, and shall include in all contracts, subcontracts and
purchase orders, a requirement that such contractors, subcontractors or
materialmen, as the case may be, shall, cause all workers at the Demised
Premises to work harmoniously with each other and with Building personnel and
in a manner which will not disrupt access to or use of the common areas of the
Building, cause inconvenience to the other tenants in the Building or interfere
with the conduct of other tenants' business. Tenant agrees that should Tenant,
its agents and/or contractors, enter upon the Demised Premises for the purpose
of performing any work, the labor employed by Tenant or anyone performing such
work, for or on behalf of Tenant, shall always be harmonious and compatible
with the labor employed by Landlord or any contractors or subcontractors of
Landlord. Should such labor be unharmonious or incompatible, Landlord may
require Tenant to withdraw such labor from the Demised Premises. In the event
Tenant or Tenant's contractor shall enter upon the Demised Premises or any
other part of the Building, Tenant agrees to indemnify and save Landlord free
and harmless, from and against any and all claims whatsoever arising out of
said entry or such work. Tenant's agents and contractors and their employees
shall comply with the special rules, regulations and requirements of Building
management with respect to the performance and coordination of said agents,
contractors and their employees so as to avoid intrusion into the operation of
the Building and to avoid disturbing the quiet enjoyment of other tenants.
Section 6.04. Tenant shall not store or place any materials
or other obstructions in the lobby or other public portions of the Building, or
on the sidewalk adjacent to the Building.
Section 6.05. Tenant shall do no work and shall make no
alterations, decorations, installations, additions or improvements in or to the
Demised Premises, including, but not limited to, installation of a water
cooler, an air-conditioning or cooling system unit or part thereof, or other
apparatus of like or other nature without Landlord's prior written consent
which consent shall not be unreasonably withheld or delayed in the case of
alterations, decorations, installations, additions or improvements in the
Demised Premises which are non-structural in nature and do not materially,
adversely affect the structure, exterior or common areas of the Building or
materially, adversely affect the functioning of the heating, ventilating or
air- conditioning, electrical, mechanical, plumbing or elevator systems of the
Building or other tenants' use thereof, and then only by contractors or
mechanics approved by Landlord. Such approval must be obtained prior to any
bidding for said work. All such work, alterations, decorations, installations,
additions or improvements shall be done at Tenant's sole expense and at such
times and in such manner as Landlord may from time to time designate and in
full compliance with all governmental bodies having jurisdiction thereover.
Tenant's work, alterations, decorations, installations, additions or
improvements shall be completed free of all liens and encumbrances and, as a
condition precedent to Landlord's consent to the making by Tenant of
alterations, decorations, installations, additions or improvements to the
Demised Premises, Tenant shall obtain, and deliver to Landlord, at the earliest
opportunity permitted by applicable law, written and unconditional waivers of
mechanics' liens upon the real property in which the Demised Premises are
located, for all work, labor and services to be performed and materials to be
furnished by them in connection with such work, signed by all contractors,
subcontractors, materialmen and laborers to become involved in such work. As a
condition to Landlord's permission to Tenant to make any of Tenant's
installations in the Demised Premises, Landlord may require that Tenant agree
with Landlord to fixing the Commencement Date of this Lease.
Landlord shall not be liable for any failure of the
air-conditioning and ventilating equipment in the Demised Premises installed by
Landlord caused by any work, alterations, decorations, installations, additions
or improvements by Tenant, and Tenant shall correct any such condition causing
such failure promptly upon notice from Landlord of the need therefor. If
Tenant shall fail to correct same, Landlord may make such correction and charge
Tenant for the cost thereof. Such sum due Landlord shall be deemed additional
rent and shall be paid by Tenant promptly upon being billed therefor.
Section 6.06. Prior to commencing any work pursuant to the
provisions of Section 6.05, Tenant shall furnish to Landlord:
(i) Copies of all governmental permits and
authorizations which may be required in connection with such work.
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(ii) A certificate evidencing that Tenant (or
Tenant's contractors) has (have) procured workers' compensation insurance
covering all persons employed in connection with the work who might assert
claims for death or bodily injury against Landlord, "Overlandlord" (as
hereinafter defined), Tenant or the Building.
(iii) Such additional personal injury and property
damage insurance (over and above the insurance required to be carried by Tenant
pursuant to the provisions of Article 9) as Landlord may reasonably require
because of the nature of the work to be performed by Tenant.
Section 6.07. All work, alterations, decorations,
installations, additions or improvements upon the Demised Premises made by
either party, including all paneling, decorations, partitions, railings,
mezzanine floors, galleries and the like, affixed to the realty or for which
Tenant shall have received a credit or contribution shall, unless Landlord
elects otherwise (which election shall be made by giving a notice pursuant to
the provisions of Article 30 not less than thirty (30) days prior to the
expiration or other termination of this Lease or any renewal or extension
thereof) become the property of Landlord and shall remain upon, and be
surrendered with the Demised Premises as a part thereof at the end of the Term
or renewal or extension term, as the case may be. In the event that Landlord
shall elect otherwise, then such alterations, decorations, installations,
additions or improvements made by Tenant upon the Demised Premises as Landlord
shall select shall be removed by Tenant, and Tenant shall restore the Demised
Premises to its original condition, at its own cost and expense, at or prior to
the expiration of the Term.
Where furnished by or at the expense of Tenant
(except where same is a replacement of an item theretofore furnished and paid
for by Landlord or against which Tenant has received a credit or contribution
from Landlord), all movable property, furniture, furnishings and trade fixtures
other than those affixed to the realty so that they cannot be removed without
material damage shall remain the property of Tenant and shall be removed from
the Demised Premises on or before the Expiration Date. In the event of damage
to the Demised Premises or the Building by reason of such removal, Tenant shall
restore the same to good order and condition (normal wear and tear excepted).
If Tenant should desire to leave any part of such property in the Demised
Premises upon the expiration of the Term, it shall so notify Landlord in
writing not less than sixty (60) days prior to the expiration of the Term,
specifying the items of property which it desires to so leave. If within
thirty (30) days after the service of such notice Landlord shall request Tenant
to remove any of the said property, Tenant shall, at its expense, at or before
the expiration of the Term, remove said property and, in case of damage to the
Demised Premises or the Building by reason of such removal, restore the Demised
Premises to good order and condition (normal wear and tear excepted).
Section 6.08. Landlord shall not be responsible for
supervision and/or coordination in respect to Tenant's activities pursuant to
this Lease. Landlord's managing agent shall perform such supervision and
coordination and, with respect to any work, alteration, decoration, addition or
improvement costing more than $15,000, Tenant agrees to pay such managing
agent, promptly upon being billed therefor, a sum equal to ten (10%) percent of
the cost of such work for indirect costs, field supervision and coordination in
connection therewith. Tenant agrees to keep records of Tenant's work,
alterations, decorations, additions and improvements costing in excess of
$15,000 and of the cost thereof. Tenant agrees to furnish to Landlord's
managing agent copies of such records certified as correct by Tenant within
forty-five (45) days after Landlord's managing agent's request therefor.
Section 6.09. Tenant will not do any act or suffer any act
to be done which will in any way encumber the title of Landlord or Tenant in
and to the Demised Premises or the Building or the Land, nor will the interest
or estate of Landlord or Tenant in the Demised Premises or the Building or the
Land be in any way subject to any claim by way of lien or encumbrance, whether
by operation of law or by virtue of any express or implied contract by Tenant.
Section 6.10. Tenant will not suffer or permit any liens to
stand against the Demised Premises, the Building or the Land or any part
thereof, by reason of any work, labor, services or materials done for, or
supplied to, or claimed to have been done for, or supplied to, Tenant, or
anyone holding the Demised Premises or any part thereof through or under
Tenant. If any such lien is at any time filed against the Demised Premises or
the Building or the Land, Tenant will cause the same to be discharged of record
within thirty (30)
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days after the date of filing of the same, by either payment, deposit or
bonding (and the failure of Tenant to do so shall be a material default
hereunder entitling Landlord to give a notice to Tenant pursuant to the
provisions of Section 17.01(1) hereof). In addition to any other right or
remedy of Landlord, Landlord may, but will not be obligated to, procure the
discharge of such lien either by paying the amount claimed to be due by deposit
in court or bonding, and/or Landlord will be entitled, if Landlord so elects,
to compel the prosecution of an action for the foreclosure of such lien by the
lienor and to pay the amount of the judgment, if any, in favor of the lienor
with interest computed at the Interest Rate, costs and allowances. Any amount
paid or deposited by Landlord for any of the aforesaid purposes, and all legal
and other expenses of Landlord, including, without limitation, attorneys' fees
incurred in defending such action or in procuring the discharge of such lien,
with all necessary disbursements in connection therewith, will become due and
payable on the date of payment or deposit, as additional rent.
Section 6.11. Nothing in this Lease will be deemed to be,
or construed in any way as constituting, the consent or request of Landlord,
express or implied by inference or otherwise, to any person, firm or
corporation for the performance of any labor or the furnishing of any materials
for any construction, rebuilding, alteration or repair of or to the Demised
Premises, the Building or the Land or any part thereof, nor as giving Tenant
any right, power or authority to contract for or permit the rendering of any
services or the furnishing of any materials which might in any way give rise to
the right to file any lien against Landlord's interest in the Demised Premises,
the Building or the Land.
ARTICLE 7
FLOOR LOAD, NOISE, WINDOW CLEANING
Section 7.01. Tenant shall not place a load upon any floor
of the Demised Premises which exceeds the load per square foot which such floor
was designed to carry and which is allowed by law.
Section 7.02. Business machines and mechanical equipment
belonging to Tenant which cause noise or vibration that may be transmitted to
the structure of the Building or the Demised Premises to such a degree as to be
objectionable to Landlord shall be placed and maintained by the party owning
the machines or equipment, at such party's expense, in settings of cork, rubber
or spring type vibration eliminators sufficient to eliminate noise or
vibration.
Section 7.03. Tenant will not clean, nor require, permit,
suffer or allow any window in the Demised Premises to be cleaned from the
outside in violation of Section 202 of the Labor Law or of the rules of the
Board of Standards and Appeals or of any other board or body having or
asserting jurisdiction.
ARTICLE 8
LAWS, ORDINANCES, REQUIREMENTS OF PUBLIC AUTHORITIES
Section 8.01. Tenant shall, at its expense, comply with all
laws, orders, ordinances and regulations or any direction made pursuant to any
law, ordinance, rule, regulation or order of any public office or officer which
or who shall, with respect to the particular use or manner of use of the
Demised Premises (as opposed to office use in general) or to any abatement of
nuisance, impose any violation, order or duty upon Landlord or Tenant arising
from Tenant's particular use or manner of use of the Demised Premises (as
opposed to office use in general), or as a result of any installations made
therein (whether or not in compliance with the work article hereof) by Tenant
or at Tenant's request, or required by reason of a breach of any of Tenant's
covenants or agreements hereunder.
Section 8.02. If Tenant should desire to contest the
validity of any such law, ordinance, rule, regulation or order with which
Tenant is obligated to comply, it may, at its expense, carry on such contest
and non-compliance by it during such contest (so long as Tenant proceeds with
due diligence) shall not constitute a breach of this Lease provided that it
shall, to the satisfaction of Landlord, indemnify and hold Landlord harmless
from and against all liability for any loss, damages and expenses (including,
without limitation, attorneys' fees) which might result from or be incurred in
connection with such contest or non-
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compliance. Notwithstanding the foregoing, non-compliance as aforesaid shall
not commence or continue if it might subject Landlord to any fine or penalty or
to prosecution for a crime, or if it would constitute a default by Landlord
under any mortgage or lease affecting the Building and/or the Land.
Section 8.03. If Tenant receives written notice of any
violation of law, ordinance, rule, regulation or order applicable to the
Demised Premises, it shall give prompt notice thereof to Landlord.
Section 8.04. Except as aforesaid, Landlord shall, at its
expense, comply with or cause to be complied with, all laws, ordinances, rules,
regulations and orders of federal, state, county and municipal authorities and
any direction made pursuant to law of any public officer or officers which
shall, with respect to the public portions of the Building, impose any
violation, order or duty upon Landlord or Tenant and with respect to which
Tenant is not obligated by Section 8.01 to comply. Except as aforesaid,
Landlord shall further, at its expense, comply with or cause to be complied
with, all laws, ordinances, rules, regulations and orders of federal, state,
county and municipal authorities and any direction made pursuant to law of any
public officer or officers which affect Tenant's use or enjoyment of, or access
to, the Demised Premises and with respect to which Tenant is not obligated by
Section 8.01 to comply. Landlord may, at its expense, contest the validity of
any such law, ordinance, rule, order or regulation.
ARTICLE 9
INSURANCE, PROPERTY LOSS, REIMBURSEMENT
Section 9.01. Tenant shall not do or permit to be done any
act or thing upon the Demised Premises which will invalidate or be in conflict
with the Certificate of Occupancy or the terms of the New York State standard
form of fire, boiler, sprinkler, water damage or other insurance policies
covering the Building and the fixtures and property therein and Tenant shall,
at its own expense, comply with all rules, orders, regulations or requirements
of the New York Board of Fire Underwriters or any other similar body having
jurisdiction and shall not knowingly do or permit anything to be done in or
upon the Demised Premises in a manner which increases the rate of fire
insurance upon the Building or on any property or equipment located therein
over the rate in effect at the commencement of the Term of this Lease.
Section 9.02. If, by reason of any failure of Tenant to
comply with the provisions of this Lease, the rate of fire, boiler, sprinkler,
water damage or other insurance (with extended coverage) on the Building or on
the property and equipment of Landlord or any other tenant or subtenant in the
Building shall be higher than it otherwise would be, Tenant shall reimburse
Landlord and the other tenants in the Building for that part of the fire,
boiler, sprinkler, water damage or other insurance premiums thereafter paid by
Landlord or by the other tenants in the Building which shall have been charged
because of such failure by Tenant, and Tenant shall make the reimbursement on
the first day of the month following such payment by Landlord or such other
tenants. In any action or proceeding wherein Landlord and Tenant are parties,
a schedule or "make up" of any insurance rate for the Building or Demised
Premises issued by the New York Fire Insurance Exchange, or other body
establishing fire insurance rates for the Building, shall be conclusive
evidence of the facts therein stated and of the several items and charges in
the insurance rates then applicable to the Building or Demised Premises.
Section 9.03. Tenant, at Tenant's own cost and expense,
shall maintain insurance protecting and indemnifying Landlord and Tenant (and
at Landlord's request, the landlord under any ground or underlying lease
[herein "Overlandlord"], as well as the holder of any mortgage affecting the
Land, the Building or both) against any and all claims for injury or damage to
persons or property for the loss of life or of property occurring upon, in or
about the Demised Premises and the public portions of the Building used by
Tenant, its employees, agents, contractors, customers and invitees arising out
of the negligent act or omission of any of the foregoing, such insurance to
afford minimum protection during the Term of this Lease of not less than a
single combined limit of $3,000,000 in respect of property damage and bodily
injury or death to any one person or in respect of any one occurrence or
accident. Landlord may from time to time require that the amount of liability
insurance to be maintained by Tenant under this Article be increased so that
Landlord shall be adequately protected giving due consideration to all relevant
circumstances and conditions.
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All such insurance shall be effected under valid and
enforceable policies (which may cover the Demised Premises and other
locations), shall be issued by insurers of recognized responsibility and shall
contain a provision whereby the insurer agrees not to cancel the insurance
without ten (10) days' prior written notice to Landlord.
On or before the Commencement Date of this Lease, Tenant shall
furnish Landlord with a certificate evidencing the aforesaid insurance coverage
and renewal certificates shall be furnished to Landlord at least thirty (30)
days prior to the expiration date of each policy for which a certificate was
theretofore required to be furnished.
Section 9.04. Tenant shall give Landlord immediate notice
in case of a fire or accident in the Demised Premises or the Building, or of
defects therein or in any fixtures or equipment promptly after Tenant becomes
aware of the same.
Section 9.05. Tenant shall indemnify and hold Landlord
harmless from and against all liabilities, suits, claims, demands and actions,
and costs and expenses of any kind or nature, due to or arising out of any
injury to person or property, including death resulting at any time therefrom,
occurring in or about the Demised Premises. To the extent of any valid and
collectible insurance furnished by Tenant for the protection of Landlord,
Tenant's obligation to indemnify and hold Landlord harmless against liability
which is covered by such insurance shall be deemed, to the extent thereof, to
be satisfied.
Section 9.06. Landlord and Tenant shall each endeavor to
secure an appropriate clause in, or an endorsement upon, each fire or extended
coverage or rent insurance policy obtained by it and covering the Building, the
Demised Premises or the personal property, fixtures and equipment located
therein or thereon, pursuant to which the respective insurance companies waive
subrogation or permit the insured, prior to any loss, to agree with a third
party to waive any claim it might have against said third party. The parties
hereto shall give prompt notice to the other in the event such clause is or
becomes unavailable. The waiver of subrogation or permission for waiver of any
claim shall extend to the agents of each party and the employees of each party
and its respective agents and, in the case of Tenant, shall also extend to all
other persons and entities occupying or using the Demised Premises. If and to
the extent that such waiver or permission can be obtained only upon payment of
an additional charge, then the party benefiting from the waiver or permission
shall pay such charge upon written demand, or shall be deemed to have agreed
that the party obtaining the insurance coverage in question shall be free of
any further obligations under the provisions hereof relating to such waiver or
permission.
Subject to the foregoing provisions of this Section 9.06, each
party hereby releases the other with respect to any claim (including a claim
for negligence) which it might otherwise have against the other party for loss,
damages or destruction with respect to its property by fire or other casualty
(including rental value or business interest, as the case may be) occurring
during the Term of this Lease.
Section 9.07. Tenant agrees to look solely to Landlord's
estate and interest in the Land and Building, or the lease of the Building, or
of the Land and Building, and the Demised Premises (or the unencumbered
proceeds from a sale thereof), for the satisfaction of any right or remedy of
Tenant for the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord, in the event of any liability by Landlord,
and no other property or assets of Landlord shall be subject to levy,
execution, attachment, or other enforcement procedure for the satisfaction of
Tenant's remedies under or with respect to this Lease, the relationship of
Landlord and Tenant hereunder, or Tenant's use and occupancy of the Demised
Premises, or any other liability of Landlord to Tenant.
ARTICLE 10
DAMAGE OR DESTRUCTION BY FIRE OR OTHER CAUSE
Section 10.01. If the Building or the Demised Premises shall
be partially or totally damaged or destroyed by fire or other cause, then
whether or not the damage or destruction shall have resulted from the fault or
neglect of Tenant, or its employees, agents or visitors (and if this Lease
shall not have been terminated
<PAGE> 17
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as in this Article 10 hereinafter provided), Landlord shall to the extent
permitted by available insurance proceeds, repair the damage and restore and
rebuild the Building and/or the Demised Premises (without limiting the rights
of any insurance company, subrogated to Landlord's rights hereunder pursuant to
the terms of any insurance policy as to which Landlord shall have been unable
to obtain a waiver of subrogation in accordance with Section 9.06 hereof to
seek recovery from Tenant, and any rights of Landlord under any other
provisions of this Lease or at law or in equity), with reasonable dispatch
after notice to it of the damage or destruction; provided, however, that
Landlord shall not be required to repair or replace any of Tenant's property.
Notwithstanding anything contained herein to the contrary, in no event shall
Tenant be relieved of liability or responsibility for damage or destruction
resulting from the fault or neglect of Tenant if the insurance policies carried
by Landlord on the Building do not contain a waiver of the right of
subrogation.
Section 10.02. If the Building or the Demised Premises shall
be partially destroyed by fire or other cause, the rents payable hereunder
shall be abated to the extent that the Demised Premises shall have been
rendered untenantable and for the period from the date of such damage or
destruction to the date the damage shall be repaired or restored. If the
Demised Premises or a major part thereof shall be totally (which shall be
deemed to include substantially completely) untenantable on account of fire or
other cause, the rent shall abate as of the date of the damage or destruction
and until Landlord shall repair, restore and rebuild the Building and the
Demised Premises, provided, however, that should Tenant occupy or reoccupy a
portion of the Demised Premises during the period the Demised Premises are made
completely untenantable, rents allocable to such portion shall be payable by
Tenant from the date of such occupancy.
Section 10.03. If the Building or Demised Premises shall be
totally damaged or destroyed by fire or other cause, or if the Building shall
be so damaged or destroyed by fire or other cause that Landlord shall decide
not to restore or rebuild it, then in either such case Landlord may terminate
this Lease by giving Tenant notice to such effect within sixty (60) days after
the date of the casualty. In case of any substantial damage or destruction
mentioned in this Article 10 which prevents Tenant from operating its business
in the Demised Premises for more than fifteen (15) Business Days, Tenant may
terminate this Lease by notice to Landlord given within thirty (30) days of the
occurrence of such damage.
Section 10.04. No damages, compensation or claim shall be
payable by Landlord for inconvenience, loss of business or annoyance arising
from any repair or restoration of any portion of the Demised Premises or of the
Building pursuant to this Article 10. Landlord shall endeavor to effect such
repair or restoration promptly and in such manner as not unreasonably to
interfere with Tenant's business, provided no additional costs, for labor at
overtime or premium rates, or otherwise, are incurred thereby.
Section 10.05. Notwithstanding any of the foregoing
provisions of this Article 10, if Landlord or Overlandlord or the holder of any
superior mortgage shall be unable to collect all of the insurance proceeds
(including rent insurance proceeds) applicable to damage or destruction of the
Demised Premises or the Building by fire or other cause by reason of some
action or inaction on the part of Tenant or any of its employees, agents or
contractors, then, without prejudice to any other remedies which may be
available against Tenant, there shall be no abatement of Tenant's rent until
the total amount of such rent not abated which would otherwise have been abated
equals the amount of uncollected insurance proceeds.
Section 10.06. Landlord will not carry separate insurance of
any kind on Tenant's property and Landlord shall not be obligated to repair any
damage thereto or replace the same.
Section 10.07. In the event of the termination of this Lease
pursuant to any of the provisions of this Article 10, this Lease and the Term
and estate hereby granted shall expire as of the date of such termination with
the same effect as if that were the Expiration Date, and the Fixed Rent and
additional rent payable hereunder shall be apportioned as of such date.
Section 10.08. The provisions of this Article 10 shall be
considered an express agreement governing any case of damage or destruction of
the Demised Premises by fire or other casualty, and Section 227 of the Real
Property Law of the State of New York providing for a contingency in the
absence of an express agreement, and any other law of like import, now or
hereafter in force, shall have no application to the Demised Premises and this
Lease.
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ARTICLE 11
ASSIGNMENT, SUBLETTING, MORTGAGING
Section 11.01. (a) Tenant will not by operation of law or
otherwise, assign, mortgage or otherwise encumber this Lease, nor the estate
and Term hereby granted, nor sublet or permit the Demised Premises or any part
thereof to be used by others, without Landlord's prior written consent in each
instance. The consent by Landlord to any assignment or subletting shall not in
any manner be construed to relieve Tenant from obtaining Landlord's express
written consent to any other or further assignment or subletting.
If Tenant desires to assign or sublet all or any portion of
the Demised Premises, Tenant agrees to use as its exclusive rental agent for
such purpose the then designated leasing agent of the Building and to notify
such leasing agent of its desire to assign this Lease or sublet the Demised
Premises. Upon obtaining a proposed assignee or sublessee, upon terms
satisfactory to Tenant, Tenant shall submit to Landlord in writing (1) the name
of the proposed assignee or subtenant; (2) the terms and conditions of the
proposed assignment or subletting; (3) the nature and character of the business
of the proposed assignee or subtenant and any other information reasonably
requested by Landlord.
Upon receipt of the foregoing submission from Tenant Landlord
shall have the following options to be exercised within thirty (30) business
days from the date of such receipt:
1. If an assignment shall be proposed or if a
proposed subletting shall be for all or substantially all of the Demised
Premises, Landlord shall have the option to terminate this Lease effective as
of the date proposed by Tenant for such assignment or subletting.
2. If a proposed sublease shall be for less than
all or substantially all of the Demised Premises or if it shall be for less
than the balance of the Term of this Lease, Landlord shall have the option to
terminate this Lease as to the portion of the Demised Premises proposed to be
sublet for such portion of the Term as is included in such proposed sublease,
effective as of the effective date of such proposed sublease. In the event of
the exercise of such option under this subparagraph 2, the rent and all other
charges payable hereunder shall be equitably apportioned, and Tenant shall be
responsible for the cost of constructing any necessary demising walls.
3. Landlord shall have the option to require
Tenant to execute an assignment or sublease to Landlord, or to any party
designated by Landlord, upon the same terms and conditions as contemplated with
the proposed assignee or subtenant, except that (A) Landlord (or Landlord's
designee) as assignee or sublessee shall have an express unlimited right to
further assign or sublease to others and to make any alterations required in
connection therewith, and (B) the rent or consideration payable under such
assignment or sublease to Landlord (or Landlord's designee) shall be the lower
of (i) the rental payable by Tenant to Landlord under this Lease, or (ii) the
rental payable by the proposed assignee or subtenant pursuant to the assignment
or sublease originally proposed by Tenant.
(b) If Landlord shall not exercise any of its foregoing
options within the time set forth above, provided Tenant shall not then be in
default hereunder, Landlord's consent to any such proposed assignment or
subletting shall not be "unreasonably" withheld or delayed, as described in
paragraph (c) of this Section 11.01.
If Landlord shall not exercise any of the options described in
paragraph (a) above and Tenant shall thereupon assign this Lease or sublet all
or any portion of the Demised Premises, then and in that event Tenant shall pay
to Landlord as additional rent the difference, if any, between the Fixed Rent
plus additional rent allocable to that part of the Demised Premises affected by
such assignment or sublease pursuant to the provisions of this Lease, and the
Fixed Rent and additional rent payable by the assignee or sublessee to Tenant.
Such additional rent payments shall be made monthly within five (5) days after
receipt of the same by Tenant. Any other cash or other consideration payable
to Tenant in connection with such assignment or sublease or the sale of
Tenant's property in connection therewith shall be similarly paid over to
Landlord when and as received by Tenant.
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If Tenant fails to consummate any proposed assignment or
subletting to which Landlord shall have consented within sixty (60) days after
granting such consent, paragraph (a) shall again apply to said proposed
assignment or subletting.
No option exercised by Landlord pursuant to the above
provisions of paragraph (a), and no assignment or sublease made to Landlord
under the above provisions of paragraph (a), shall be binding upon any
purchaser of any ground or underlying lease who acquires such ground or
underlying lease by reason of the foreclosure of any mortgage to which this
Lease is subordinate, nor upon any assignee of any ground or underlying lease
who takes such assignment in lieu of such foreclosure, it being understood,
however, that such purchaser or assignee may, at its option, elect to enforce
such option, assignment or sublease.
(c) In determining reasonableness with respect to its
consent to a proposed assignment or sublease by Tenant, Landlord may take into
consideration all relevant factors surrounding the proposed assignment or
sublease, including, without limitation, the following:
(i) the financial stability and business
reputation of the proposed assignee or subtenant;
(ii) the nature of the business and the proposed use
of the Demised Premises by the proposed assignee or subtenant in relation to
the majority of other tenants in the Building;
(iii) that the proposed assignee or subtenant shall
not be a tenant of other space in the Building or a party which has dealt with
Landlord or Landlord's agent (directly or through a broker) with respect to
space in the Building during the six (6) months immediately preceding Tenant's
request for Landlord's consent, provided Landlord has space in the Building for
such proposed assignee or subtenant;
(iv) restrictions contained in leases of other
tenants of the Building;
(v) the effect that the proposed assignee's or
subtenant's occupancy or use of the Demised Premises would have upon the
operation and maintenance of the Building and Landlord's investment therein;
(vi) that not more than one entity shall occupy
the Demised Premises at any time.
Section 11.02. If this Lease shall be assigned, or if the
Demised Premises or any part thereof be sublet or occupied by any person or
persons other than Tenant, Landlord may after default by Tenant, collect rent
from the assignee, subtenant or occupant and apply the net amount collected to
the rent herein reserved, but no such assignment, subletting, occupancy or
collection of rent shall be deemed a waiver of the covenants in this Article,
nor shall it be deemed acceptance of the assignee, subtenant or occupant as a
tenant, or a release of Tenant from the full performance by Tenant of all the
terms, conditions and covenants of this Lease.
Section 11.03. Each assignee or transferee shall assume and
be deemed to have assumed this Lease and shall be and remain liable jointly and
severally with Tenant for the payment of the rent, additional rent and
adjustments of rent, and for the due performance of all the terms, covenants,
conditions and agreements herein contained on Tenant's part to be performed for
the Term of this Lease. No assignment shall be binding on Landlord unless such
assignee or Tenant shall deliver to Landlord a duplicate original of the
instrument of assignment which contains a covenant of assumption by the
assignee of all of the obligations aforesaid and shall obtain from Landlord the
aforesaid written consent prior thereto.
Section 11.04. For the purposes of this Lease, any sale,
transfer or assignment of any of the stock of a corporate Tenant or any
transfer in the control of Tenant by operation of law or otherwise shall be
deemed an assignment.
Section 11.05. The listing of any name other than that of
Tenant, whether on the doors of the Demised Premises, on the Building directory
or otherwise, shall not operate to vest any right or interest in this
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Lease or the Demised Premises. It is expressly understood that any such
listing is a privilege extended by Landlord that is revocable at will by
written notice to Tenant.
Section 11.06. Tenant shall reimburse Landlord for any costs
incurred by Landlord to review the requested consent provided in Article 11,
including attorneys' fees.
Section 11.07. If Landlord shall recover or come into
possession of the Demised Premises before the Expiration Date, Landlord shall
have the right to take over any sublease made by Tenant and to succeed to all
rights of Tenant thereunder, Tenant hereby assigning (effective as of the date
of Landlord's succession of Tenant's estate in the Demised Premises) such
subleases as Landlord may elect to take over. Every subletting hereunder shall
be subject to the condition that, from and after the termination of this Lease
or re-entry by Landlord hereunder or other succession by Landlord to Tenant's
estate in the Demised Premises, the subtenant under such sublease shall waive
any right to surrender possession or to terminate the sublease and, at
Landlord's election, shall be bound to Landlord for the balance of the term
thereof and shall attorn to and recognize Landlord, as its landlord, under all
of the then executory terms of such sublease, except that Landlord shall not be
(a) liable for any previous act, omission or negligence of Tenant under such
sublease, (b) subject to any counterclaim, defense or offset theretofore
accruing to such subtenant against Tenant, (c) bound by any previous
modification or amendment of such sublease made without Landlord's consent or
by any previous prepayment of more than one month's rent and additional rent
unless paid as provided in the sublease, or (d) obligated to perform any
repairs or other work in the subleased space or the Building beyond Landlord's
obligations under this Lease, and each subtenant shall execute and deliver such
instruments as Landlord may reasonably request to evidence and confirm such
attornment.
Section 11.08. Notwithstanding anything to the contrary
elsewhere contained herein (including Section 11.01(a) hereof), provided that
Tenant shall not be in default in any of the terms of this Lease beyond notice
and the expiration of any applicable grace period, Tenant may, without
Landlord's consent but upon not less than ten (10) days' prior written notice
to Landlord, sublet to any corporations or other business entities which
control, are controlled by, or are under common control with Tenant (herein
referred to as a "Related Entity") all or part of the Demised Premises or
permit any Related Entity to occupy the same for any of the purposes permitted
to Tenant, subject however to compliance with Tenant's obligations under this
Lease. Such subletting or occupancy shall not be deemed to vest in any such
Related Entity any right or interest in this Lease nor shall such subletting or
occupancy relieve, release, impair or discharge any of Tenant's obligations
hereunder. Tenant shall deliver to Landlord a copy of any such sublease or
occupancy agreement for all or any portion of the Demised Premises.
ARTICLE 12
NO LIABILITY ON LANDLORD
Section 12.01. Landlord or its agents shall not be liable
for any damage to property of Tenant or of others entrusted to employees of the
Building, nor for the loss of or damage to any property of Tenant by theft or
otherwise. Landlord or its agents shall not be liable for any injury or damage
to persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, water, rain or snow, leaks from any part of the Building or
from the pipes, appliances or plumbing works or from the roof, street or
sub-surface or from any other place or by dampness or by any other cause of
whatsoever nature, unless caused by or due to the negligence of Landlord, its
agents, servants or employees; nor shall Landlord or its agents be liable for
any such damage caused by other tenants or persons in the Building or caused by
operations in construction of any private, public or quasi-public work; nor
shall Landlord be liable for any latent defect in the Demised Premises or in
the Building of which they form a part. If at any time any windows of the
Demised Premises are temporarily or permanently closed, darkened or bricked up
for any reason whatsoever including but not limited to Landlord's own acts,
Landlord shall not be liable for any damage Tenant may sustain thereby, and
Tenant shall not be entitled to any compensation therefor nor abatement of
rent, nor shall the same release Tenant from its obligations hereunder nor
constitute an eviction.
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ARTICLE 13
MOVING OF HEAVY EQUIPMENT
Section 13.01. Tenant shall not move any safe, heavy
equipment or bulky matter in or out of the Building without Landlord's written
consent, which consent Landlord agrees not to unreasonably withhold or delay.
If the movement of such items requires special handling, Tenant agrees to
employ only persons holding a Master Rigger's License to do said work and all
such work shall be done in full compliance with the Administrative Code of the
City of New York and other municipal requirements. All such movements shall be
made during hours which will least interfere with the normal operations of the
Building, and all damage caused by such movement shall be promptly repaired by
Tenant at Tenant's expense.
ARTICLE 14
CONDEMNATION
Section 14.01. In the event that the whole of the Demised
Premises or access thereto shall be lawfully condemned or taken in any manner
for any public or quasi-public use, this Lease and the Term and estate hereby
granted shall forthwith cease and terminate as of the date of vesting of title.
In the event that only a part of the Demised Premises shall be so condemned or
taken, then, effective as of the date of vesting of title, the rent hereunder
for such part shall be abated. In the event that only a part of the Building
shall be so condemned or taken, then (a) if substantial structural alteration
or reconstruction of the Building shall in the reasonable opinion of Landlord
be necessary or appropriate as a result of such condemnation or taking (whether
or not the Demised Premises be affected), Landlord may, at its option,
terminate this Lease and the Term and estate hereby granted as of the date of
such vesting of title by notifying Tenant in writing of such termination within
sixty (60) days following the date on which Landlord shall have received notice
of vesting of title, or (b) if Landlord does not elect to terminate this Lease,
as aforesaid, this Lease shall be and remain unaffected by such condemnation or
taking, except that the Fixed Rent and additional rent shall be abated to the
extent, if any, hereinbefore provided in this Article 14. In the event that
only a part of the Demised Premises shall be so condemned or taken and this
Lease and the Term and estate hereby granted are not terminated as hereinbefore
provided, Landlord will, at its expense, restore with reasonable diligence the
remaining structural portions of the Demised Premises as nearly as practicable
to the same condition as it was prior to such condemnation or taking.
In the event of termination in any of the cases hereinabove
provided in this Article 14, this Lease and the Term and estate hereby granted
shall expire as of the date of such termination with the same effect as if that
were the date hereinbefore set for the expiration of the Term of this Lease,
and the rent hereunder shall be apportioned as of such date.
In the event of any condemnation or taking hereinabove
mentioned of all or a part of the Building, Landlord shall be entitled to
receive the entire award in the condemnation proceeding, including any award
made for the value of the estate vested by this Lease in Tenant, and Tenant
hereby expressly assigns to Landlord any and all right, title and interest of
Tenant now or hereafter arising in or to any such award or any part thereof,
and Tenant shall be entitled to receive no part of such award.
ARTICLE 15
ENTRY, RIGHT TO CHANGE PUBLIC PORTIONS OF THE BUILDING
Section 15.01. Tenant shall permit Landlord to erect, use
and maintain pipes and conduits in and through the Demised Premises. All such
pipes and conduits shall either be concealed above the suspended ceiling area,
or within the demising walls or installed in the service columns, or shall be
installed along the walls of the Demised Premises and appropriately enclosed,
where feasible. In the event the construction deprives the Tenant of the use
of a material or substantial portion of the usable area of the Demised Premises
(other than on a temporary basis), the Tenant shall be entitled to an pro rata
abatement of rent for the space so permanently taken. Landlord or its agents
or designees shall have the right, but only upon reasonable notice (except in
emergencies, in which event no notice shall be required) given to Tenant or any
authorized employee of Tenant at the Demised Premises, to enter the Demised
Premises at reasonable times during business hours, for the
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purpose of making such repairs or alterations as shall be required or as
Landlord shall have the right to make by the provisions of this Lease.
Landlord shall be allowed to take all material into and upon the Demised
Premises that may be required for the repairs and alterations above mentioned
without the same constituting an eviction of Tenant in whole or in part, and
the rent reserved hereunder shall in no wise abate, except as otherwise
provided in this Lease, while said repairs or alterations are being made, by
reason of loss or interruption of the business of Tenant because of the
prosecution of any such work, or otherwise. Landlord agrees to do any work
pursuant to this Article in such a manner so as not to unreasonably interfere
with Tenant's business, provided no additional costs, for labor at overtime or
premium rates, or otherwise, are incurred thereby.
Section 15.02. During the twelve (12) months prior to the
expiration of the Term of this Lease, Landlord may exhibit the Demised Premises
to prospective tenants. Landlord shall also have the right to enter the
Demised Premises for the purpose of inspecting the same or exhibiting the same
to prospective purchasers or lessees of the entire Building or to prospective
mortgagees of the property of which the Demised Premises forms a part. The
holders of any mortgage of Landlord's interest in the property, or such
holders' agents or designees, shall also have such right of inspection for
itself and for any prospective assignees of any such mortgagees.
Section 15.03. Landlord shall have the right at any time
without thereby creating an actual or constructive eviction or incurring
liability to Tenant therefor, to change the arrangement or location of such of
the following as are not contained within the Demised Premises or any part
thereof: entrances, passageways, elevators, doors and doorways, corridors,
stairs, toilets and other like public service portions of the Building.
ARTICLE 16
BANKRUPTCY
Section 16.01. (a) Anything elsewhere in this Lease to
the contrary notwithstanding, this Lease may be cancelled by Landlord by the
sending of a written notice to Tenant within a reasonable time after the
happening of any one or more of the following events: (i) Tenant shall (A) have
applied for or consented to the appointment of a receiver, trustee, liquidator,
or other custodian of Tenant or any of its properties or assets, (B) be unable
to pay its debts generally as they become due or shall have taken any other
action which could result in it becoming the subject of an insolvency or
bankruptcy proceeding, (C) have made a general assignment for the benefit of
creditors, (D) have commenced a voluntary case for relief as a debtor under the
United States Bankruptcy Code or filed a petition to take advantage of any
bankruptcy, reorganization, insolvency, readjustment of debts, dissolution or
liquidation law or statute or an answer admitting the material allegations of a
petition filed against it in any proceeding under any such law, or (E) be
adjudicated a bankrupt or insolvent; or (ii) Without the acquiescence or
consent of Tenant an order, judgment or decree shall have been entered by any
court of competent jurisdiction approving as properly filed a petition seeking
relief under the United States Bankruptcy Code or any bankruptcy,
reorganization, insolvency, readjustment of debts, dissolution or liquidation
law or statute with respect to Tenant or appointing a receiver, trustee,
liquidator or other custodian of all or a substantial part of its properties or
assets, and such order, judgment or decree shall have continued unstayed and in
effect for any period of not less than sixty (60) days. Neither Tenant, nor
any person claiming through or under Tenant or by reason of any statute or
order of court, shall thereafter be entitled to possession of the Demised
Premises, but shall forthwith quit and surrender the Demised Premises. If this
Lease shall be assigned in accordance with its terms, the provisions of this
Article shall be applicable only to the party then owning Tenant's interest in
this Lease.
(b) It is stipulated and agreed that in the event
of the termination of this Lease pursuant to paragraph (a) hereof, Landlord
shall forthwith, notwithstanding any other provisions of this Lease to the
contrary, be entitled to recover from Tenant as and for liquidated damages an
amount equal to the difference between the rent reserved hereunder for the
unexpired portion of the Term demised and the then fair and reasonable rental
value of the Demised Premises for the same period. In the computation of such
damages the difference between any installment of rent becoming due hereunder
after the date of termination and the fair and reasonable rental value of the
Demised Premises for the period for which such installment was payable shall be
discounted to the date of termination at the rate of four percent (4%) per
annum. If the Demised Premises or any part thereof be re-let by Landlord for
the unexpired Term of this Lease, or any part thereof, before the
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presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such re- letting shall be prima
facie evidence as to the fair and reasonable rental value for the part or the
whole of the Demised Premises so re-let during the term of the re-letting.
Nothing herein contained shall limit or prejudice the right of Landlord to
prove for and obtain as liquidated damages by reason of such termination, an
amount equal to the maximum allowed by any statute or rule in effect at the
time when, and governing the proceedings in which, such damages are to be
approved, whether or not such amount be greater, equal to, or less than the
amount of the difference referred to above.
ARTICLE 17
DEFAULTS AND REMEDIES AND WAIVER OF REDEMPTION
Section 17.01. (1) If (A) Tenant defaults in fulfilling
any of the covenants of this Lease, with respect to the covenants for the
payment of Fixed Rent or additional rent, and if such default shall continue
for seven (7) days after Landlord shall have given to Tenant a written notice
specifying such default or (B) the Demised Premises are abandoned by Tenant or
if the Demised Premises are damaged by reason of negligence or carelessness of
Tenant, its agents, employees or invitees, or (C) in the case of the happening
of a default or omission (other than in the payment of Fixed Rent, additional
rent or other charges hereunder, and other than the failure to cause a lien
against the Demised Premises, the Building or the Land to be discharged of
record within the time period provided for elsewhere in this Lease) which
default shall continue for twenty (20) days after notice thereof to Tenant (or
in the case of the happening of a default or omission which cannot with due
diligence be completely cured or remedied within such twenty (20) day period,
if Tenant shall not have diligently commenced curing such default within such
twenty (20) day period, and shall not thereafter with reasonable diligence and
in good faith be proceeding to remedy or cure such default), then, in any such
case, Landlord may give to Tenant a notice of intention to terminate this Lease
upon the expiration of three (3) days from the service of such notice of
intention, and upon the expiration of said three (3) days, this Lease and the
Term hereof shall terminate, and Tenant shall then quit and surrender the
Demised Premises to Landlord, but Tenant shall remain liable as hereinafter
provided.
(2) If (A) the notice provided for in (1) hereof shall
have been given, and the Term shall expire as aforesaid; or (B) if Tenant shall
make any default in the payment of Fixed Rent or additional rent herein
reserved, or any part of either, or in making any other payment herein
provided; or (C) if any execution or attachment shall be issued against Tenant
or any of Tenant's property whereupon the Demised Premises shall be taken or
occupied or attempted to be taken or occupied by someone other than Tenant; or
(D) if Tenant shall make default with respect to any other lease between
Landlord and Tenant; then in any of such events Landlord may, without notice,
re-enter the Demised Premises either by force or otherwise, and dispossess
Tenant and the legal representatives of Tenant or any other occupants of the
Demised Premises by summary proceedings or otherwise and remove their effects
and hold the Demised Premises as if this Lease had not been made. Tenant
hereby waives the service of notice of intention to re-enter or to institute
legal proceedings to the aforesaid end. If Tenant shall make default hereunder
prior to the date fixed as the commencement of any renewal or extension of this
Lease, Landlord may cancel and terminate such renewal or extension agreement by
written notice, but Tenant shall remain liable as hereinafter provided.
Section 17.02. In case of any such default, re-entry,
expiration and/or dispossess by summary proceedings or otherwise, (i) the rent
shall become due thereupon and be paid up to the time of such re-entry,
dispossess and/or expiration together with such costs as Landlord may incur for
legal expenses, attorneys' fees, brokerage and/or putting the Demised Premises
in good order, or for preparing the same for re-rental; (ii) Landlord may
re-let the Demised Premises or any part or parts thereof, either in the name of
Landlord or otherwise, for a term or terms, which may at Landlord's option be
less than or exceed the period which would otherwise have constituted the
balance of the Term of this Lease and may grant concessions or free rent;
and/or (iii) Tenant or the legal representatives of Tenant shall also pay
Landlord as liquidated damages for the failure of Tenant to observe and perform
Tenant's covenants herein contained, at the election of Landlord, either:
(a) a sum which at the time of such termination
of this Lease or at the time of any such re-entry by Landlord, as the case may
be, represents the then value of the excess, if any, of (1) the
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aggregate of the installments of Fixed Rent and the additional rent (if any)
which would have been payable hereunder by Tenant, had this Lease not so
terminated, for the period commencing with such earlier termination of this
Lease or the date of any such re- entry, as the case may be, and ending with
the date hereinbefore set for the expiration of the full term hereby granted
pursuant to Articles 1 and 2 hereof, over (2) the aggregate rental value of the
Demised Premises for the same period, said lump sum to be discounted to the
Expiration Date of this Lease at the then prevailing prime rate of interest; or
(b) sums equal to the aggregate of the
installments of Fixed Rent and additional rent (if any) which would have been
payable by Tenant had this Lease not so terminated, or had Landlord not so
re-entered the Demised Premises, payable upon the due dates therefor specified
herein following such termination or such re-entry and until the date
hereinbefore set for the expiration of the full Term hereby granted; provided,
however, that if Landlord shall re-let the Demised Premises during said period,
Landlord shall credit Tenant with the net rents received by Landlord for such
re-letting, such net rents to be determined by first deducting from the gross
rents as and when received by Landlord from such re-letting the expenses
incurred or paid by Landlord terminating this Lease or of re-entering the
Demised Premises and of securing possession thereof, including, without
limitation, attorneys' fees and costs of removal and storage of Tenant's
property, as well as the expenses of re-letting, including repairing,
restoring, altering, decorating and preparing the Demised Premises for new
tenants, brokers' commissions, advertising costs, attorneys' fees, and all
other similar or dissimilar expenses chargeable against the Demised Premises
and the rental therefrom in connection with such re-letting, it being
understood that any such re-letting may be for a period equal to or shorter or
longer than the remaining Term of this Lease; provided, further, that (1) in no
event shall Tenant be entitled to receive any excess of such net rents over the
sums payable by Tenant to Landlord hereunder, (2) in no event shall Tenant be
entitled in any suit for the collection of damages pursuant to this paragraph
(b) to a credit in respect of any net rents from a re-letting except to the
extent that such net rents are actually received by Landlord prior to the
commencement of such suit, and (3) if the Demised Premises or any part thereof
should be re-let in combination with other space, then proper apportionment on
a square foot area basis shall be made of the rent received from such
re-letting and of the expenses of re-letting.
For the purpose of paragraph (a) of this Section 17.02, the
amount of additional rent which would have been payable by Tenant under Article
3 hereof for each year, as therein provided, ending after such termination of
this Lease or such re-entry, shall be deemed to be an amount equal to the
amount of such additional rent payable by Tenant for the calendar year and Tax
Year ending immediately preceding such termination of this Lease or such
re-entry. Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the Term of this Lease would have expired if it had not
been terminated under the provisions of Articles 16 or 17 hereof, or under any
provision of law, or had Landlord not re-entered the Demised Premises.
Landlord, at Landlord's option, may make such alterations,
repairs, replacements and/or decorations in the Demised Premises as Landlord in
Landlord's sole judgment considers advisable and necessary for the purpose of
re-letting the Demised Premises; and the making of such alterations and/or
decorations shall not operate or be construed to release Tenant from any
liability hereunder as aforesaid. Landlord shall in no event be liable in any
way whatsoever for failure to re-let the Demised Premises, or in the event that
the Demised Premises are re-let, for failure to collect the rent thereof under
such re-letting. In the event of a breach or threatened breach by Tenant of
any of the covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity as if
re-entry, summary proceedings and other remedies were not herein provided for.
Mention in this Lease of any particular remedy shall not preclude Landlord from
any other remedy, in law or in equity. Tenant hereby expressly waives any and
all rights of redemption granted by or under any present or future laws in the
event of Tenant being evicted or dispossessed for any cause, or in the event of
Landlord obtaining possession of the Demised Premises, by reason of the
violation by Tenant of any of the covenants and conditions of this Lease, or
otherwise.
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ARTICLE 18
LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
Section 18.01. If Tenant shall default in the observance or
performance of any term or covenant on its part to be observed or performed
under or by virtue of any of the terms or provisions in any Article of this
Lease which default shall continue after notice and the expiration of any
applicable cure period (except in the event of an emergency in which event no
notice shall be necessary), Landlord, without being under any obligation to do
so and without thereby waiving such default, may remedy such default for the
account and at the expense of Tenant. If Landlord makes any expenditures or
incurs any obligations for the payment of money in connection therewith,
including, but not limited to, attorneys' fees in instituting, prosecuting or
defending any action or proceedings, such sums paid or obligations incurred
with interest computed at the Interest Rate and costs shall be deemed to be
additional rent hereunder and shall be paid to it by Tenant on demand.
ARTICLE 19
COVENANT OF QUIET ENJOYMENT
Section 19.01. Landlord covenants that upon Tenant paying
the rent and additional rents and observing and performing all the terms,
covenants and provisions of this Lease on Tenant's part to be observed and
performed, Tenant may peaceably and quietly enjoy the Demised Premises, subject
nevertheless to the terms and conditions of this Lease and provided, however,
that no eviction of Tenant by reason of paramount title, the foreclosure of any
mortgage now or hereafter affecting the Demised Premises or by reason of any
termination of any ground or underlying lease to which this Lease is subject
and subordinate, whether such termination is by operation of law, by agreement
or otherwise, shall be construed as a breach of this covenant nor shall any
action by reason thereof be brought against Landlord, and provided further that
this covenant shall bind and be enforceable against Landlord, subject to the
terms hereof, only so long as Landlord is in possession and is collecting rent
from Tenant but not thereafter.
ARTICLE 20
EXCAVATION
Section 20.01. In the event that an excavation should be
made for building or other purposes upon land adjacent to the Building, or
should be authorized to be made, Tenant shall, if necessary, afford to the
person or persons causing or authorized to cause such excavation, license to
enter upon the Demised Premises for the purpose of doing such work as shall
reasonably be necessary to protect or preserve the wall or walls of the
Building, or the Building, from injury or damage and to support them by proper
foundations, pinning and/or underpinning.
ARTICLE 21
SERVICES AND EQUIPMENT
Section 21.01. So long as this Lease is in full force and
effect, Landlord shall, at its cost and expense:
(a) Provide necessary elevator facilities on
Business Days from 8:00 A.M. to 6:00 P.M. and shall have sufficient elevators
available at all other times. At Landlord's option, the elevators shall be
operated by automatic control or by manual control, or by a combination of both
of such methods.
(b) (i) Maintain and keep in good order and
repair the air-conditioning, heating and ventilating system installed by
Landlord, which system is further described hereinbelow. The "interior"
portion of said system will be operated by Landlord as seasonably required on
Business Days from 8:00 A.M. to 6:00 P.M. and the "perimeter" portion of said
system shall be under Tenant's control. Landlord shall have no responsibility
or liability for the ventilating conditions and/or temperature of the Demised
Premises during the
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hours or days Landlord is not required to furnish heat, ventilation or
air-conditioning pursuant to this paragraph. Landlord has informed Tenant that
the windows of the Demised Premises and the Building may be sealed and that
accordingly, the Demised Premises may become uninhabitable and the air therein
unbreathable during the hours or days when Landlord is not required pursuant to
this paragraph to furnish heat, ventilation or air-conditioning. Such
condition of the Demised Premises shall not constitute nor be deemed to
constitute a breach or a violation of this Lease or of any provision thereof,
nor shall such condition of the Demised Premises constitute or be deemed to
constitute an eviction and Tenant shall not claim nor be entitled to claim any
abatement of rent or make any claim for any damages or compensation by reason
of such condition of the Demised Premises. Any use or occupancy of the Demised
Premises during the hours or days Landlord is not required to furnish heat,
ventilation or air-conditioning to the Demised Premises pursuant to this
paragraph shall be at the sole risk, responsibility and hazard of Tenant.
Tenant shall in any event cause all of the windows in the Demised Premises to
be kept closed at all times and shall cause all of the vents, intakes, outlets
and grilles in the Demised Premises to be kept entirely unobstructed at all
times. Additionally, Tenant shall comply with and observe any and all rules,
regulations and requirements hereafter prescribed by Landlord for the proper
functioning of the heating, ventilating and air-conditioning system.
(ii) The heating, ventilating and
air-conditioning system servicing the Demised Premises consists, as of the date
hereof, of an interior duct air distribution system and perimeter units. The
perimeter units serve that portion of the Demised Premises which is within 15
feet from the glass line of the Building and operate automatically, commencing
operation at 8:00 A.M. and ceasing operation at 6:00 P.M. The perimeter units
may be activated by Tenant at any other time and upon activation will operate
for a pre-programmed period of time and may be reactivated by Tenant
thereafter on a continuing basis. All electricity used in connection with the
operation of the perimeter units shall be supplied by Landlord upon and subject
to all of the terms and conditions contained in Article 4 hereof.
(iii) In the event that Tenant shall
require operation of the "interior" portion of the air-conditioning, heating
or ventilation system at times other than as described above, Tenant shall give
Landlord at least twenty-four (24) hours advance notice of such requirement
and, if reasonably practicable, Landlord will arrange for such operation and
Tenant shall pay Landlord's established charges therefor as additional rent,
including with respect to minimum number of hours and/or minimum floor area for
such operation.
(c) Provide cleaning and janitorial services on
Business Days.
(d) Furnish hot and cold water for lavatory,
pantry and drinking and office cleaning purposes. If Tenant requires, uses or
consumes water for any other purposes, Tenant agrees to Landlord installing a
meter or meters or other means to measure Tenant's water consumption, and
Tenant further agrees to reimburse Landlord for the cost of the meter or meters
and the installation thereof, and to pay for the maintenance of said meter
equipment and/or to pay Landlord's cost of other means of measuring such water
consumption by Tenant. Tenant shall reimburse Landlord the cost of all water
consumed, as measured by said meter or meters or as otherwise measured,
including sewer rents.
Section 21.02. Landlord reserves the right to interrupt,
curtail or suspend the services required to be furnished by Landlord under this
Article 21 when the necessity therefor arises by reason of accident, emergency,
mechanical breakdown, or when required by any law, order or regulation of any
federal, state, county or municipal authority, or for any other cause beyond
the reasonable control of Landlord. Landlord shall do any work pursuant to
this Article in such a manner so as to minimize interference with Tenant's
business, provided no additional costs, for labor at overtime or premium rates,
or otherwise, are incurred thereby. No diminution or abatement of rent or
other compensation shall or will be claimed by Tenant as a result of any
interruption, curtailment or suspension of services, nor shall this Lease or
any of the obligations of Tenant be affected or reduced by reason of such
interruption, curtailment or suspension.
Section 21.03. Tenant shall reimburse Landlord for the cost
to Landlord of removal from the Demised Premises and the Building of so much of
any refuse and rubbish of Tenant as shall exceed that ordinarily accumulated
daily in the routine of business office occupancy or by any use of the Demised
Premises after customary business hours.
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Section 21.04. It is expressly agreed that only Landlord or
any one or more persons, firms or corporations authorized in writing by
Landlord will be permitted to furnish laundry, linen, towels, drinking water,
ice and other similar supplies and services to tenants and licensees in the
Building. Landlord may fix, in its sole and absolute discretion, at any time
and from time to time, the hours during which and the regulations under which
such supplies and services are to be furnished. Landlord expressly reserves
the right to act as or to designate, at any time and from time to time, an
exclusive supplier of all or any one or more of the said supplies and services,
provided that the quality thereof and the charges therefor are reasonably
comparable to that of other suppliers and Landlord furthermore expressly
reserves the right to exclude from the Building any person, firm or corporation
attempting to furnish any of said supplies or services but not so designated by
Landlord.
Section 21.05. It is expressly agreed that only Landlord or
any one or more persons, firms or corporations authorized in writing by
Landlord will be permitted to sell, deliver or furnish any food or beverages,
either personally or through the use of vending machines, for consumption
within the Demised Premises or elsewhere in the Building. Landlord expressly
reserves the right to act as or to designate at any time, or from time to time,
an exclusive supplier or suppliers of such food and beverages sold in the
Building and Landlord further expressly reserves the right to exclude from the
Building any person, firm or corporation attempting to purvey any such food or
beverages but not so designated by Landlord. It is understood, however, that
Tenant or regular office employees of Tenant who are not employed by any
supplier of such food or beverages or by any person, firm or corporation
engaged in the business of purveying such food or beverages, may personally
bring or have delivered into the Building food or beverages for consumption
within the Demised Premises by employees of Tenant, but not for resale to or
for consumption by any other tenant. Landlord may fix in its absolute
discretion, at any time and from time to time, the hours during which and the
regulations under which foods and beverages may be brought or delivered into
the Building by or for regular employees of Tenant. Notwithstanding the
foregoing, it is understood that Tenant or regular office employees of Tenant
who are not employed by any supplier of such food or beverages or by any
person, firm or corporation engaged in the business of purveying such food or
beverages, may personally bring food or beverages into the Building for
consumption within the Demised Premises by employees of Tenant, but not for
resale to or for consumption by any other tenant. It is further understood
that Tenant may order food and beverages for delivery to Tenant in the Demised
Premises for consumption by Tenant's employees and invitees from contractors,
restaurants and caterers selected by Tenant, without obtaining Landlord's prior
consent, provided however that if Landlord determines that the delivery by any
such contractor, restaurant or caterer poses a security risk to the Building
personnel or to other tenants in the Building or otherwise causes a nuisance or
disruption in the Building, Landlord may exclude same from the Building.
Section 21.06. Tenant agrees to employ such office
maintenance contractor as Landlord may from time to time designate, for all
waxing, polishing, lamp replacement, cleaning (other than those cleaning
services Landlord is obligated to furnish) and the maintenance work in the
Demised Premises, provided that the quality thereof and the charges therefor
are reasonably comparable to that of other contractors. Tenant shall not
employ any other contractor without Landlord's prior written consent, which
shall not be unreasonably withheld.
Section 21.07. Landlord will not be required to furnish any
other services, except as otherwise provided in this Lease.
Section 21.08. (a) Tenant, at its sole cost and expense,
shall cause the Demised Premises to be exterminated on a monthly basis to the
satisfaction of Landlord and shall for such purposes employ exterminators
designated by Landlord.
(b) If Tenant shall have facilities on the
Demised Premises for cooking, drinking, eating, washing and/or storage of food,
or similar items, Tenant shall, on a weekly basis, cause the portion of the
Demised Premises on which such facilities are located to be exterminated to the
satisfaction of Landlord by exterminators designated by Landlord. The
foregoing shall not, however, constitute any approval or consent to the use of
the Demised Premises for such purposes.
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(c) If Tenant fails to comply with the provisions
of this Section 21.08, Landlord, in addition to any other remedies available to
it under this Lease or pursuant to law, may perform such service, and the cost
therefor shall be paid by Tenant on demand as additional rent hereunder.
ARTICLE 22
DEFINITION OF LANDLORD
Section 22.01. The term "Landlord" wherever used in this
Lease shall be limited to mean and include only the owner or owners at the time
in question of the Land and the Building or the Building or the tenant under a
ground or underlying lease affecting the Land and the Building or the Building,
or both, to whom this Lease may be assigned, or a mortgagee in possession, so
that in the event of any sale, assignment or transfer of the Land and the
Building or the Building, or of such ground or underlying lease, such owner,
tenant under a ground lease or mortgagee in possession shall thereupon be
released and discharged from all covenants, conditions and agreements of
Landlord thereafter accruing hereunder; but such covenants, conditions and
agreements shall be binding upon each new owner, tenant under a ground or
underlying lease, or mortgagee in possession for the time being of the Land and
the Building, until sold, assigned or transferred.
ARTICLE 23
INVALIDITY OF ANY PROVISION
Section 23.01. If any term, covenant, condition or provision
of this Lease or the application thereof to any circumstance or to any person,
firm or corporation shall be invalid or unenforceable to any extent, the
remaining terms, covenants, conditions and provisions of this Lease, or the
application thereof to any circumstances or to any person, firm or corporation
other than those as to which any term, covenant, condition or provision is held
invalid or unenforceable, shall not be affected thereby and each remaining
term, covenant, condition and provision of this Lease shall be valid and shall
be enforceable to the fullest extent permitted by law.
ARTICLE 24
BROKER
Section 24.01. The parties hereto agree that Newmark and
Company Real Estate, Inc. and SageGroupAssociates Inc. (collectively, the
"Brokers") were the only brokers who negotiated and brought about this
transaction, and Landlord agrees to pay the Brokers a commission therefor as
per separate agreements. Tenant represents and warrants that it has not dealt
with any broker in connection with this transaction other than the Brokers, and
Tenant agrees to indemnify and save Landlord harmless from any claims made by
other brokers claiming to have dealt with Tenant. Landlord represents that it
has not dealt with any broker in connection with this transaction other than
the Brokers, and Landlord agrees to indemnify and save Tenant harmless from any
claims made by other brokers claiming to have dealt with Landlord in connection
with this transaction.
ARTICLE 25
SUBORDINATION
Section 25.01. This Lease is subject and subordinate to all
ground or underlying leases and to all mortgages which may now or hereafter
affect such leases or the Building of which the Demised Premises forms a part,
and to all renewals, modifications, consolidations, replacements and extensions
thereof. This clause shall be self-operative, and no further instrument of
subordination shall be required by any mortgagee. In confirmation of such
subordination, Tenant shall execute promptly any certificate that Landlord may
request. Tenant hereby constitutes and appoints Landlord the Tenant's
attorney-in-fact to execute any such certificate or certificates for and on
behalf of Tenant.
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Section 25.02. At the option of Landlord or any successor
landlord or the holder of any mortgage affecting the Demised Premises, Tenant
agrees that neither the cancellation nor termination of any ground or
underlying lease to which this Lease is now or may hereafter become subject or
subordinate, nor any foreclosure of a mortgage affecting said premises, nor the
institution of any suit, action, summary or other proceeding against Landlord
herein or any successor landlord, or any foreclosure proceeding brought by the
holder of any such mortgage to recover possession of such property, shall by
operation of law or otherwise result in cancellation or termination of this
Lease or the obligations of Tenant hereunder, and upon the request of any such
landlord, successor landlord, or the holder of such mortgage, Tenant covenants
and agrees to attorn to Landlord or to any successor to Landlord's interest in
the Demised Premises, or to such holder of such mortgage or to the purchaser of
the mortgaged premises in foreclosure.
Section 25.03. In the event of any act or omission by
Landlord which would give Tenant the right to terminate this Lease or to claim
a partial or total eviction, pursuant to the terms of this Lease, if any,
Tenant will not exercise any such right until:
(i) it has given written notice of such act or omission
to the following (whose names and addresses shall previously have been
furnished to Tenant) by delivering such notice of such act or omission
addressed to such holders at the last address so furnished:
(a) the holder of any first mortgage, and
(b) the landlord under any ground or underlying
lease to which this Lease is subject and subordinate; and
(ii) a reasonable period for remedying such act or
omission shall have elapsed following such giving of notice during which such
parties, or any of the parties, with reasonable diligence, following the giving
of such notice, has not commenced and continued to remedy such act or omission
or to cause the same to be remedied.
Section 25.04. If, in connection with obtaining financing, a
banking, insurance or other recognized institutional lender shall request
reasonable modifications in this Lease as a condition to such financing, Tenant
will not unreasonably withhold, delay or defer its consent thereto, provided
that such modifications do not, in Tenant's reasonable opinion, increase the
obligations of Tenant hereunder or materially adversely affect the leasehold
interest hereby created or Tenant's use and enjoyment of the Demised Premises.
ARTICLE 26
ESTOPPEL CERTIFICATE
Section 26.01. Tenant agrees, at any time, and from time to
time, upon not less than seven (7) days prior notice from Landlord, to execute,
acknowledge and deliver to Landlord a statement in writing addressed to
Landlord certifying that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that the same is in full force and
effect as modified and stating the modifications), stating the dates to which
the Fixed Rent, additional rental and other charges have been paid, and stating
whether or not to the best knowledge of the signer of such certificate, there
exists any default in the performance of any covenant, agreement, term,
provision or condition contained in this Lease, and any claim or offset in
favor of Tenant, and, if any, specifying each such default, claim or offset in
favor of Tenant, and, if any, specifying each such default, claim or offset of
which signer may have knowledge, it being intended that any such statement
delivered pursuant hereto may be relied upon by Landlord and by any purchaser
or prospective purchaser of the Building and/or the Land and by any mortgagee
or prospective mortgagee of any mortgage affecting the Building and/or the
Land, and by any landlord under a ground or underlying lease affecting the Land
or the Building.
<PAGE> 30
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ARTICLE 27
LEGAL PROCEEDINGS, WAIVER OF JURY TRIAL
Section 27.01. Landlord and Tenant hereby waive, to the
extent such waiver is not prohibited by law, the right to a jury trial in any
action, summary proceeding or legal proceeding between or among the parties
hereto or their successors arising out of this Lease or Tenant's occupancy of
the Demised Premises or Tenant's right to occupy the Demised Premises.
Section 27.02. Tenant hereby waives the right to interpose a
counterclaim (other than a compulsory counterclaim) in any summary proceeding
instituted by Landlord against Tenant or in any action instituted by Landlord
for unpaid rent or additional rent under this Lease.
Section 27.03. Tenant hereby agrees that the existence of
any legal proceeding arising under this Lease, or any judgment resulting
therefrom, shall remain confidential and to that end shall not discuss with, or
make public disclosure of, the same to the press, other tenants of the
Building, or otherwise. The parties hereto understand and agree that the
papers filed in the course of any such legal proceeding may be available to the
public but this Section 27.03 is understood by Tenant as a prohibition against
any public discussion or disclosure of the same, including any response to any
query from the press, other tenants of the Building or otherwise.
Section 27.04. In the event Tenant claims or asserts that
Landlord has violated or failed to perform a covenant of Landlord not to
unreasonably withhold or delay Landlord's consent or approval, or in any case
where Landlord's reasonableness in exercising its judgment is in issue,
Tenant's sole remedy shall be an action for specific performance, declaratory
judgment or injunction, and in no event shall Tenant be entitled to any money
damages for a breach of such covenant, and in no event shall Tenant claim or
assert any claims in any money damages in any action or by way of set-off,
defense or counterclaim, and Tenant hereby specifically waives the right to any
money damages or other remedies.
ARTICLE 28
SURRENDER OF PREMISES/HOLDOVER
Section 28.01. Upon the expiration or other termination of
the Term of this Lease, Tenant shall quit and surrender the Demised Premises in
good order and condition, ordinary wear and tear and damage by fire or other
casualty, the elements and any cause beyond Tenant's reasonable control
excepted, and shall remove all its property therefrom, except as otherwise
provided in this Lease. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of the Term of this
Lease.
Section 28.02. If at any time during the last month of the
Term of this Lease, Tenant shall have removed all or substantially all of
Tenant's property from the Demised Premises, Landlord may, and Tenant
irrevocably grants to Landlord a license to, immediately enter and alter,
renovate and redecorate the Demised Premises, without diminution or abatement
of rent, or incurring liability to Tenant for any compensation, and such acts
shall have no effect on this Lease.
Section 28.03. Tenant agrees it shall indemnify and save
Landlord harmless against all costs, claims, loss or liability resulting from
delay by Tenant in surrendering the Demised Premises upon expiration or sooner
termination of the term of this Lease, including, without limitation, any
claims made by any succeeding tenant founded on such delay. The parties
recognize and agree that the damage to Landlord resulting from any failure by
Tenant timely to surrender the Demised Premises will be substantial, will
exceed the amount of monthly rent theretofore payable hereunder, and will be
impossible of accurate measurement. Tenant therefore agrees that if possession
of the Demised Premises is not surrendered to Landlord within two (2) days
after the date of the expiration or sooner termination of the Term of this
Lease, then Tenant will pay Landlord as liquidated damages for each month and
for each portion of any month during which Tenant holds over in the Demised
Premises after expiration or sooner termination of the Term of this Lease, a
sum equal to two and one-half (2 1/2) times the average rent and additional
rent which was payable per month under this Lease during the
<PAGE> 31
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six (6) month period preceding such expiration or termination of the Term of
this Lease. The aforesaid obligations shall survive the expiration of sooner
termination of the Term of this Lease.
ARTICLE 29
RULES AND REGULATIONS
Section 29.01. Tenant, its servants, employees, agents,
visitors, and licensees shall observe faithfully and comply strictly with the
rules and regulations set forth in Schedule C attached hereto and made a part
hereof. Landlord shall have the right from time to time during the Term of
this Lease to make reasonable changes in and additions to the rules thus set
forth.
Section 29.02. Any failure by Landlord to enforce any rules
and regulations now or hereafter in effect, either against Tenant or any other
tenant in the Building, shall not constitute a waiver of any such rules and
regulations.
ARTICLE 30
NOTICES
Section 30.01. Any notice, request or demand permitted or
required to be given by the terms and provisions of this Lease, or by any law
or governmental regulation, either by Landlord to Tenant or by Tenant to
Landlord, shall be in writing. Unless otherwise required by such law or
regulation, such notice, request or demand shall be given, and shall be deemed
to have been served and given by Landlord and received by Tenant, three (3)
days after Landlord (1) shall have deposited such notice, request or demand by
registered or certified mail return receipt requested enclosed in a securely
closed postpaid wrapper, in a United States Government general or branch post
office, addressed to Tenant at the Demised Premises, and until Tenant has moved
its offices to the Demised Premises, (2) shall have deposited such notice,
request or demand by registered or certified mail return receipt requested
enclosed in a securely closed postpaid wrapper in such a post office addressed
to Tenant at its address as stated on the first page of this Lease. Such
notice, request or demand shall be given, and shall be deemed to have been
served and given by Tenant and received by Landlord, three (3) days after
Tenant shall have deposited such notice, request or demand by registered or
certified mail return receipt requested enclosed in a securely closed postpaid
wrapper in such a post office addressed to Landlord at 777 Third Avenue, New
York, New York 10017. Notices may also be sent by Federal Express or other
similar nationally recognized overnight courier and shall be deemed to have
been served and given the next Business Day after deposit with such overnight
courier. Either party may, by notice as aforesaid, designate a different
address or addresses for notices, requests or demands to it.
ARTICLE 31
NO WAIVER: ENTIRE AGREEMENT
Section 31.01. The failure of Landlord to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease, or any of the Rules and Regulations set forth or
hereafter adopted by Landlord shall not prevent a subsequent act which would
have originally constituted a violation from having all the force and effect of
an original violation. The receipt by Landlord of rent with knowledge of the
breach of any covenant of this Lease shall not be deemed a waiver of such
breach. The failure of Landlord to enforce any of the Rules and Regulations
set forth, or hereafter adopted, against Tenant and/or any other tenant in the
Building shall not be deemed a waiver of any such Rules and Regulations. No
provision of this Lease shall be deemed to have been waived by Landlord, unless
such waiver be in writing signed by Landlord. No payment by Tenant or receipt
by Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment as rent be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such rent or pursue any other remedy in this Lease provided.
<PAGE> 32
- 28 -
Section 31.02. This Lease with the Schedules annexed hereto,
if any, contains the entire agreement between Landlord and Tenant, and any
executory agreement hereafter made between Landlord and Tenant shall be
ineffective to change, modify, waive, release, discharge, terminate, or effect
an abandonment of this Lease, in whole or in part, unless such executory
agreement is in writing and signed by the party against which enforcement of
the change, modification, waiver, release, discharge, termination or the
effecting of the abandonment is sought.
ARTICLE 32
CAPTIONS
Section 32.01. The captions of Articles in this Lease are
inserted only as a matter of convenience and for reference, and they in no way
define, limit or describe the scope of this Lease or the intent of any
provision thereof.
ARTICLE 33
INABILITY TO PERFORM
Section 33.01. This Lease and the obligation of Tenant to
pay rent hereunder and perform all of the other covenants and agreements
hereunder on the part of Tenant to be performed shall in no way be affected,
impaired or excused because Landlord is unable to fulfill any of its
obligations under this Lease or to supply or is delayed in supplying any
service expressly or impliedly to be supplied or is unable to make, or is
delayed in making any repair, additions, alterations or decorations or is
unable to supply or is delayed in supplying any equipment or fixtures if
Landlord is prevented or delayed from so doing by reason of strike or labor
troubles or any outside cause whatsoever including but not limited to,
governmental preemption in connection with a National Emergency or by reason of
any rule, order or regulation of any department or subdivision thereof of any
government agency or by reason of the conditions of supply and demand which
have been or are affected by war or other emergency.
ARTICLE 34
NO REPRESENTATION BY LANDLORD
Section 34.01. Landlord or Landlord's agents have made no
representations or promises with respect to the Building, the Land or the
Demised Premises except as herein expressly set forth, and no rights, easements
or licenses are acquired by Tenant by implication or otherwise except as
expressly set forth in the provisions of this Lease. The taking of possession
of the Demised Premises by Tenant shall be conclusive evidence, as against
Tenant, that Tenant accepts said premises and that the Demised Premises and the
Building of which the same form a part were in good and satisfactory condition
at the time such possession was so taken.
ARTICLE 35
NAME OF BUILDING
Section 35.01. The Building may be known as or by such name
as Landlord, in its sole discretion, may elect, and Landlord shall have the
right from time to time to change such designation or name without Tenant's
consent.
ARTICLE 36
SUCCESSORS AND ASSIGNS
Section 36.01. The covenants, conditions and agreements
contained in this Lease shall bind and inure to the benefit of the parties
hereto and their respective heirs, legal representatives, successors and,
except as otherwise provided herein, their assigns.
<PAGE> 33
- 29 -
ARTICLE 37
DEFERRED COLLECTIONS
Section 37.01. If all or any part of the Fixed Rent or
additional rents, as above defined, shall at any time become uncollectible,
reduced or required to be refunded by virtue of any rules, regulations, orders,
laws and ordinances (including, without limitation, rent control or
stabilization laws), or governmental or quasi-governmental authorities having
jurisdiction ("Laws and Ordinances"), then for the period prescribed by said
Laws and Ordinances, Tenant shall pay to Landlord the maximum amounts permitted
pursuant to said Laws and Ordinances. Upon the expiration of the applicable
period of time during which such amounts shall be uncollectible, reduced or
refunded, Tenant shall pay to Landlord as additional rent, within fifteen (15)
days after demand, all such uncollected, reduced or refunded amounts that would
have been payable for the period absent such Laws and Ordinances; provided,
however, that the retroactive collection thereof shall then be lawful.
ARTICLE 38
FEES/INTEREST/LATE CHARGES
Section 38.01. Whenever any default by Tenant causes
Landlord to incur attorneys' fees and/or any other costs or expenses, Tenant
agrees that it shall pay and/or reimburse Landlord for such fees, costs or
expenses promptly upon being billed therefor.
Section 38.02. If any monies owing by Tenant under this
Lease are paid more than five (5) days after the date such monies are payable
pursuant to the provisions of this Lease, Tenant shall pay Landlord interest
thereon, at the Interest Rate, for the period from the date such monies were
originally payable to the date such monies are paid. In the event that twice
in any twelve (12) month period Tenant shall have defaulted beyond any
applicable notice and cure period in the payment of Fixed Rent or additional
rent, or any part of either, then any further default by Tenant within such
twelve (12) month period shall permit Landlord to collect from Tenant, upon
demand, in addition to any interest payable pursuant to this Article 38, or
elsewhere in this Lease, a late charge equal to ten percent (10%) of the amount
of Fixed Rent and additional rent so due as compensation to Landlord for the
costs incurred by it as a result of such defaults, Landlord and Tenant
acknowledging that the actual amount of such costs would be impossible to
ascertain.
ARTICLE 39
ABATEMENT OF RENT
Section 39.01. Anything herein to the contrary
notwithstanding, provided this Lease shall be in full force and effect and
Tenant shall not be in default hereunder beyond any applicable notice and grace
periods, the Fixed Rent shall abate at the rate of $12,157.50 per month for a
period of one (1) month from and after the Commencement Date. Notwithstanding
the foregoing, if Tenant shall cure any such default and this Lease shall
remain in full force and effect, then Tenant shall be entitled to receive the
full rent abatement as hereinabove provided.
ARTICLE 40
TENANT'S EXTENSION OPTION
Section 40.01. Provided this Lease shall then be in full
force and effect and Tenant shall not be in default hereunder beyond any
applicable notice and grace period either as of the date of Tenant's exercise
of the extension option described herein or as of the day which would otherwise
be the first day of the Extension Term, as defined herein (which conditions
regarding default may be waived by Landlord in its sole discretion), Tenant
shall have the right, at its option, to extend the Term for a single one (1)
year period (the "Extension Term"). The Extension Term shall commence on the
day after the Expiration Date and shall expire on the day prior to the first
(1st) anniversary of such date unless the Extension Term shall sooner end
pursuant to any of the terms, covenants or conditions of this Lease or pursuant
to law. Tenant shall give Landlord written notice of
<PAGE> 34
- 30 -
Tenant's intention to exercise such option on or before November 1, 1995, the
time of exercise being of the essence, and upon the giving of such notice, this
Lease and the Term shall be extended without execution or delivery of any other
or further documents, with the same force and effect as if the Extension Term
had originally been included in the Term and the Expiration Date shall
thereupon be deemed to be the last day of the Extension Term. All of the
terms, covenants and conditions of this Lease shall continue in full force and
effect during the Extension Term, including items of additional rent and
escalation which shall be payable on the terms herein set forth with respect to
the Extension Term (although not payable with respect to the initial Term),
except that the Fixed Rent shall be increased to $164,855.70 per annum and
Tenant shall have no further right to extend the Term pursuant to this Article.
<PAGE> 35
- 31 -
IN WITNESS WHEREOF, Landlord and Tenant have respectively
executed this Lease as of the day and year first above written.
SAGE REALTY CORPORATION, AGENT
By:/s/ Robert Kaufman
---------------------------
Landlord
RPS REALTY TRUST
By:/s/ Stanley Rappoport
---------------------------
Tenant
Executive Vice President
CORPORATE SEAL
<PAGE> 36
- 32 -
ACKNOWLEDGMENTS
State of New York )
ss.:
County of New York)
On the 2nd day of March, 1995, before me personally
came Robert Kaufman to me known, who being by me duly sworn, did depose and say
that he resides at 18 Martin Court, Great Neck, that he is the Executive Vice
President of SAGE REALTY CORPORATION, the corporation described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that he
signed his name thereto by like order.
/s/ Karen Perry
-----------------------------
Notary Public
CORPORATE TENANT
State of New York )
ss.:
County of New York )
On the 1st day of March, 1995, before me personally
came Stanley Rappoport to me known, who, being by me duly sworn did depose and
say that he resides at 52 Harlan Drive, New Rochelle, New York; that he is the
Executive Vice President of RPS REALTY TRUST, the corporation described in and
which executed the above instrument; and that he signed his name by order of
the board of directors of such corporation.
/s/ Evelyn M. Wilkowski
-----------------------------
Notary Public
<PAGE> 37
- 33 -
SCHEDULE "A"
FLOOR PLAN
SEE ATTACHED
<PAGE> 38
- 34 -
SCHEDULE "B"
INTENTIONALLY OMITTED
<PAGE> 39
- 35 -
SCHEDULE "C"
RULES AND REGULATIONS
1. The rights of tenants in the entrances,
corridors, elevators and escalators of the Building are limited to ingress to
and egress from the tenants' premises for the tenants and their employees,
licensees and invitees, and no tenant shall use, or permit the use of, the
entrances, corridors, escalators or elevators for any other purpose. No
bicycles, dogs or other animals may be brought into the Building by Tenant, or
its employees, licensees or invitees. No tenant shall invite to the tenant's
premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, escalators, elevators and other facilities of the
Building by other tenants. Tenant shall not use or permit its employees to use
the elevators before 10:00 A.M. in a "Down" direction for purposes of taking a
coffee break or similar activities. Fire exits and stairways are for emergency
use only, and they shall not be used for any other purposes by the tenants,
their employees, licensees or invitees. No tenant shall encumber or obstruct,
or permit the encumbrance or obstruction of, any of the sidewalks, plazas,
entrances, corridors, escalators, elevators, fire exits or stairways of the
Building. Landlord reserves the right to control and operate the public
portions of the Building and the public facilities, as well as facilities
furnished for the common use of the tenants, in such manner as it deems best
for the benefit of the tenants generally.
2. The cost of repairing any damage to the
public portions of the Building or the public facilities or to any facilities
used in common with other tenants, caused by a tenant or the employees,
licensees or invitees of the tenant, shall be paid by such tenant.
3. Landlord may refuse admission to the Building
outside of ordinary business hours to any person not known to the watchman in
charge or not having a pass issued by Landlord or not properly identified, and
may require all persons admitted to or leaving the Building outside of ordinary
business hours to register. Tenant's employees, agents and visitors shall be
permitted to enter and leave the Building whenever appropriate arrangements
have been previously made between Landlord and Tenant with respect thereto.
Each tenant shall be responsible for all persons for whom he requests such
permission and shall be liable to Landlord for all acts of such persons. Any
person whose presence in the Building at any time shall, in the judgment of
Landlord, be prejudicial to the safety, character, reputation and interests of
the Building or its tenants may be denied access to the Building or may be
ejected therefrom. In case of invasion, riot, public excitement or other
commotion, Landlord may prevent all access to the Building during the
continuance of the same, by closing the doors or otherwise, for the safety of
the tenants and protection of property in the Building. Landlord may require
any person leaving the Building with any package or other object to exhibit a
pass from the tenant from whose premises the package or object is being
removed, but the establishment and enforcement, or failure to enforce, of such
requirements shall not impose any responsibility on Landlord for the protection
of any tenant against the removal of property from the premises of the tenant.
Landlord shall, in no way, be liable to any tenant for damages or loss arising
from the admission, exclusion or ejection of any person to or from the tenant's
premises or the Building under the provisions of this rule.
4. No tenant shall obtain or accept or use in
its premises ice, drinking water, food, beverage, towel, barbering, boot
blacking, floor polishing, lighting maintenance, cleaning or other similar
services from any persons not authorized by Landlord in writing to furnish such
services, provided always that the charges for such services by persons
authorized by Landlord are not excessive. Such services shall be furnished only
at such hours, in such places within the tenant's premises and under such
regulations as may be fixed by Landlord.
5. No awnings or other projections over or
around the windows shall be installed by any tenant and only such window blinds
as are supplied, or permitted by Landlord shall be used in a tenant's premises.
6. There shall not be used in any space, or in
the public halls of the Building, either by Tenant or by jobbers or others, in
the delivery or receipt of merchandise or mail, any hand trucks, except those
equipped with rubber tires and side guards.
<PAGE> 40
- 36 -
7. All entrance doors in each tenant's premises
shall be left locked when the tenant's premises are not in use. Entrance doors
shall not be left open at any time. All windows in each tenant's premises shall
be kept closed at all times, and all blinds or drapes therein above the ground
floor shall be lowered or closed when and as reasonably required because of the
position of the sun, during the operation of the Building air conditioning
system to cool or ventilate the tenant's premises.
8. No noise, including the playing of any
musical instruments, radio or television, which, in the judgment of Landlord,
might disturb other tenants in the Building shall be made or permitted by any
tenant and no cooking shall be done in Tenant's premises except as expressly
approved by Landlord. Nothing shall be done or permitted in any tenant's
premises and nothing shall be brought into or kept in any tenant's premises
which would impair or interfere with any of the Building services or the proper
and economic heating, cleaning or other servicing of the Building or the
premises, or the use or enjoyment by any other tenant of any other premises,
nor shall there be installed by any tenant any ventilating, air conditioning,
electrical or other equipment of any kind which, in the judgment of Landlord,
might cause any such impairment or interference. No dangerous, inflammable,
combustible or explosive object or material shall be brought into the Building
by any tenant or with the permission of any tenant.
9. Tenant shall not permit any cooking or food
odors emanating from the Demised Premises to seep into other portions of the
Building.
10. No acids, vapors or other materials shall be
discharged or permitted to be discharged into the waste lines, vents or flues
of the Building which may damage them. The water and wash closets and other
plumbing fixtures in or serving any tenant's premises shall not be used for any
purpose other than the purpose for which they were designed or constructed, and
no sweepings, rubbish, rags, acids or other foreign substances shall be
deposited therein. All damages resulting from any misuse of the fixtures shall
be borne by the tenant who, or whose servants, employees, agents, visitors or
licensees, shall have caused the same.
11. No signs, advertisement, notice or other
lettering shall be exhibited, inscribed, painted or affixed by any tenant on
any part of the outside or inside the premises or the Building without the
prior written consent of Landlord. In the event of the violation of the
foregoing by any tenant, Landlord may remove the same without any liability,
and may charge the expense incurred by such removal to the tenant or tenants
violating this rule. Interior signs and lettering on doors and elevators shall
be inscribed, painted, or affixed for each tenant by Landlord at the expense of
such tenant, and shall be of a size, color and style acceptable to Landlord.
Landlord shall have the right to prohibit any
advertising by any tenant which impairs the reputation of the Building or its
desirability as a building for offices, and upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising.
12. No additional locks or bolts of any kind
shall be placed upon any of the doors or windows in any tenant's premises, and
no lock on any door therein shall be changed or altered in any respect.
Duplicate keys for a tenant's premises and toilet rooms shall be procured only
from Landlord, which may make a reasonable charge therefor. Upon the
termination of a tenant's lease, all keys to the tenant's premises and toilet
rooms shall be delivered to Landlord.
13. No tenant shall mark, paint, drill into, or
in any way deface any part of the Building or the premises demised to such
tenant. Not boring, cutting or stringing of wires shall be permitted, except
with the prior written consent of Landlord, and as Landlord may direct. Not
tenant shall install any resilient tile or similar floor covering in the
premises demised to such tenant except in a manner approved by Landlord.
14. No tenant shall use or occupy, or permit any
portion of the premises demised to such tenant to be used or occupied, as an
office for a public stenographer or typist, or as a barber or manicure shop, or
as an employment bureau. No tenant or occupant shall engage or pay any
employees in the Building, except those actually working for such tenant or
occupant in the Building or advertise for laborers giving an address at the
Building.
<PAGE> 41
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15. No premises shall be used, or permitted to be
used, at any time, as a store for the sale or display of goods or merchandise
or any king, or as a restaurant, shop, booth, bootblack or other stand, or for
the conduct of any business or occupation which involves direct patronage of
the general public on the premises demised to such tenant, or for manufacturing
or for other similar purposes.
16. The requirements of tenants will be attended
to only upon application at the office of the Building. Employees of Landlord
shall not perform any work or do anything outside for the regular duties,
unless under special instructions from the office of the Landlord.
17. Each tenant shall, at its expense, provide
artificial light in the premised demised to such tenant for Landlord's agents,
contractors and employees while performing janitorial or other cleaning
services and making repairs or alterations in said premises.
18. Employees of Tenant shall not loiter around
the hallways, stairways, elevators, front, roof or any other part of the
Building used in common by the occupants thereof.
19. Any cuspidors or similar containers or
receptacles used in the Demised Premises shall be cared for and cleaned by and
at the expense of Tenant.
20. Any and all wet and/or food garbage,
including coffee grinds, is to be deposited in a plastic liner bag in a waste
basket or other receptacle.
21. Tenant shall separate all refuse and rubbish
of Tenant in accordance with the methods and procedures set forth, from time to
time, by Landlord.
<PAGE> 42
SIDE LETTERS
<PAGE> 43
March 1, 1995
RPS Realty Trust
733 Third Avenue
New York, New York 10017
Re: Lease between Sage Realty Corporation, as Agent
("Landlord"), and RPS Realty Trust ("Tenant") for a
portion of the 10th floor (the "Demised Premises") in
the building known as 747 Third Avenue, New York, New
York (the "Building")
Gentlemen:
(1) Landlord hereby represents that as of the date
hereof, the Demised Premises are vacant and available for possession by Tenant.
(2) Tenant shall be entitled to four (4) directory
listings on the Building lobby directory, free of charge to Tenant. Landlord
may make a reasonable charge for any changes to the directory listings.
(3) Landlord agrees that, for purposes of Section 11.08
of the Lease, the term "Related Entity" shall be deemed to include any trustee
of Tenant.
Kindly sign a copy of this letter where indicated to
acknowledge your agreement with the foregoing.
Very truly yours,
SAGE REALTY CORPORATION, AGENT
By:/s/ Robert Kaufman
---------------------------
Robert Kaufman
Executive Vice President
Agreed to this 1st day
of March, 1995
RPS REALTY TRUST
By:/s/ Stanley Rappoport
--------------------------
Stanley Rappoport
Executive Vice President
<PAGE> 44
March 2, 1995
RPS Realty Trust
733 Third Avenue
New York, New York 10017
Re: Lease between Sage Realty Corporation, as Agent
and RPS Realty Trust for premises located at
747 Third Avenue, New York, N.Y. (the "Building")
Gentlemen:
The undersigned represents that it is authorized to execute
the referenced lease as agent for the owner of the Building.
Very truly yours,
SAGE REALTY CORPORATION
By:/s/ Robert Kaufman
--------------------
Robert Kaufman,
Executive Vice President
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EXHIBIT 10.29
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AGREEMENT
AGREEMENT, dated as of March 1, 1995, between RPS
Realty Trust, a Massachusetts business trust (the "Trust"), and Herbert
Liechtung, the President of the Trust ("Employee").
R E C I T A L S:
A. The Trust and Employee are parties to an
Employment Agreement dated as of October 24, 1988 (the "Employment Agreement")
and such agreement provides that the Trust intends to engage in the business of
mortgage lending.
B. Under paragraph 3 of the Employment
Agreement, upon the occurrence of a Business Change Event (as defined below),
and provided Employee is at such time employed by the Trust, Employee may, at
his option, by giving written notice to the Trust within 12 months of the
occurrence of the Business Change Event, cause the Term of the Employment
Agreement to terminate two months after such notice. For purposes of this
Agreement and the Employment Agreement, a "Business Change Event" includes a
change of the business carried on by the Trust having the effect that the
Trust's business ceases to be primarily the business of mortgage lending.
C. Pursuant to paragraph 3 of the Employment
Agreement, if Employee elects to terminate his employment with the Trust as a
result of a Business Change Event, the Trust is obligated to pay Employee a
stated amount based on his average compensation (the "Business Change Event
Payment").
D. In 1991, the Board of Trustees of the Trust
authorized the Trust to make direct and indirect equity investments in real
property. Since such time, the Trust has acquired nine real properties by
means of negotiated transactions with its borrowers or in connection with (or
in lieu of) foreclosure, and has made only one new mortgage loan.
E. In 1993, the Trust announced that it intended
to acquire equity interests in real properties, other than as a result of
negotiated transactions with its borrowers and foreclosure. In connection
therewith, during 1993 and early 1994 the Trust focused on several transactions
which, if consummated, would have resulted in a significant increase in the
Trust's assets invested in real properties, primarily shopping center
properties.
F. In January 1994, the Trust sold its
California mortgage loan portfolio.
G. In furtherance of the Trust's efforts to
focus on direct equity investments, the Trust commenced discussions with
Ramco-Gershenson, Inc. ("Gershenson"), a retail shopping center developer,
resulting in the Trust and Ramco entering into a Letter of Intent, dated July
14, 1994, a copy of which is attached hereto as Exhibit A.
H. It is anticipated that the Trust and
Gershenson will effectuate a business combination through the contribution of,
among other things, their respective shopping center properties to an operating
limited partnership or, in the alternative, a transaction whereby, directly or
indirectly, control of a material interest in the assets or business of
Gershenson is acquired by or combined with the Trust or any of its affiliates
(the "Gershenson Transaction").
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Simultaneously therewith or prior thereto, the Trust will dispose of its
remaining mortgage loan assets (the "Mortgage Loans") or contribute the
Mortgage Loans to a qualified REIT subsidiary, the stock of which will be
distributed to the Trust's shareholders (the "Spin-Off Transaction").
I. The Trust and Employee agree that
consummation of the Gershenson Transaction will be a Business Change Event
within the meaning of the Employment Agreement, entitling Employee to terminate
the Employment Agreement.
J. In connection with the Business Change Event
that will occur upon the consummation of the Gershenson Transaction, the Trust
and Employee have mutually agreed to terminate the Employment Agreement and
Employee's employment by the Trust, subject to the terms and conditions set
forth herein.
K. It is a condition to the consummation of the
Gershenson Transaction that the Trust satisfy the remaining obligations of the
Trust under the Employment Agreement.
NOW, THEREFORE, the parties, intending to be legally bound hereby, agree as
follows:
1. DEFINITIONS. All capitalized terms not
otherwise defined in this Agreement shall have the meanings set forth in the
Employment Agreement.
2. TERMINATION. Subject to earlier termination
as set forth in the Employment Agreement, Employee shall remain employed as
President of the Trust and all provisions of the Employment Agreement shall
remain in full force and effect until the date of consummation (the
"Transaction Date") of the Gershenson Transaction or an Alternative Transaction
(as such term is defined in paragraph 3). Effective upon the Transaction Date,
the Employment Agreement and Employee's employment by the Trust shall, without
any further action on the part of any party, be automatically terminated. From
and after the termination of the Employment Agreement and Employee's employment
by the Trust, neither party to the Employment Agreement shall have any
liability, rights or obligations with respect to such agreement, except that,
notwithstanding such termination, the Trust shall remain obligated to perform
its indemnification obligations under the Employment Agreement.
3. PAYMENTS IN CONNECTION WITH TERMINATION. (a)
On the Transaction Date, the Trust shall pay Employee all accrued but unpaid
salary and bonuses and any unreimbursed expenses owed to Employee under the
Employment Agreement through the Transaction Date, including without
limitation, the Origination Bonus payable pursuant to paragraph 6 of the
Employment Agreement in connection with the Trust's consummation of the
Gershenson Transaction or an Alternative Transaction. Such amount shall be
paid to Employee in cash by means of certified check or wire transfer.
(b) In accordance with the terms of the
Employment Agreement and in consideration of the termination of such agreement
and Employee's employment by the Trust, on the Transaction Date the Trust shall
pay Employee an amount equal to the sum of (i) $1,962,471 and (ii) the product
of (x) $27.25 and (y) the number of days which elapse between January 1, 1995
and the Transaction Date (inclusive of the payments referred to in Section 7(b)
hereof) (the "Termination Payment") in cash by means of certified check or wire
transfer, in complete satisfaction and in lieu of its obligation to make the
Business Change Event Payment; provided, however, if the Trust's obligation to
make the Termination Payment arises in connection with the consummation of an
Alternative Transaction, the amount of the Termination
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Payment shall be increased or decreased based on the Origination Bonuses (if
any) that would have been earned by the Employee under the Employment Agreement
(after taking into account the consummation of such Alternative Transaction)
during the 14 month period immediately following the Transaction Date as
determined in good faith by the Trust's Board of Trustees; provided, further,
in no event shall the amount of the Termination Payment be decreased by more
than $200,964.
(c) For purposes of this Agreement (other than
paragraph 4), "Alternative Transaction" shall mean any transaction or series of
transactions (including, without limitation, private purchases, tender offer,
exchange offer, merger, consolidation, partnership or other business
combination), other than the Gershenson Transaction, whereby, directly or
indirectly, control of a material interest in the securities, assets or
business of the Trust is acquired or combined with any unaffiliated third
party; provided, however, an Alternative Transaction shall not include (i) any
sale of the Trust's assets proposed following the adoption by the Board of a
plan to liquidate the Trust or (ii) any transaction or series of transactions
which would not otherwise constitute an Acquisition Event.
4. BONUS. (a) For extraordinary services
provided to the Trust, the Trust shall pay Employee, on the date the Gershenson
Transaction or an Alternative Transaction is consummated, an amount equal to
$500,000 (the "Bonus Payment") in cash by means of a certified check or wire
transfer. For purposes of this paragraph 4 only, "Alternative Transaction"
shall mean any transaction or series of transactions (including, without
limitation, private purchases, tender offer, exchange offer, merger,
consolidation, partnership or other business combination) whereby, directly or
indirectly, control of a material interest in the securities, assets or
business of the Trust is acquired by or combined with any unaffiliated third
party; provided, however, an Alternative Transaction shall not include any sale
of the Trust's assets pursuant to a plan of liquidation (other than a plan of
liquidation that arises from the Trust's decision not to consummate the
Gershenson Transaction).
(b) In the event (i) the Employment
Agreement is terminated due to Employee's death or disability prior to the
consummation of the Gershenson Transaction or an Alternative Transaction and
(ii) the Gershenson Transaction or an Alternative Transaction is consummated on
or before December 31, 1995, the Trust shall pay the Bonus Payment to Employee
or his legal representatives on the date of the consummation of the Gershenson
Transaction or such Alternative Transaction, as the case may be.
5. OPTION PLAN. (a) The Trust shall propose to
its shareholders that the Trust's 1989 Employees' Stock Option Plan (the
"Employee Plan") be amended and restated in substantially the form of Exhibit B
hereto (the "Amended Employee Plan"), which Amended Employee Plan shall include
the proposed amendments to the Employee Plan described on Exhibit C hereto (the
"Proposed Amendments"); provided, however, the Amended Employee Plan shall not
become effective unless and until (i) the Gershenson Transaction has been
consummated and (ii) the Amended Employee Plan has been approved and adopted by
the affirmative vote of or consent by at least a majority in interest of the
shareholders of the Trust in accordance with Rule 16b-3(b) of the Securities
Exchange Act of 1934, the Trust's Declaration of Trust and applicable law (the
"Required Vote"); and provided, further, that in the event the Trust does not
submit the Gershenson Transaction to its shareholders for approval, the Trust
shall have no
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obligation to propose to its shareholders the Amended Employee Plan. The Trust
will include the Amended Employee Plan in its proxy solicitation materials
relating to the Gershenson Transaction.
(b) In the event the Trust fails to consummate
the Gershenson Transaction because it decides to pursue an Alternative
Transaction, the Trust's Board of Trustees shall make a good faith
determination whether it is appropriate to propose that the shareholders of the
Trust approve the Amended Employee Plan (or one or more of the Proposed
Amendments which are a part of the Amended Employee Plan) in connection with
such Alternative Transaction. In the event the Board of Trustees decides to
propose to the Trust's shareholders the Amended Employee Plan (or one or more
of the Proposed Amendments which are a part of the Amended Employee Plan) in
connection with an Alternative Transaction, the Amended Employee Plan or such
amendment(s) shall not become effective unless (i) such Alternative Transaction
shall have been consummated and (ii) the Amended Employee Plan (or one or more
of the Proposed Amendments which are a part of the Amended Employee Plan) shall
have been approved and adopted by the Required Vote; provided, further, in the
event the Trust does not submit such Alternative Transaction to a vote of its
shareholders, the Trust shall, notwithstanding any determination made by its
Board of Trustees pursuant to this paragraph 5(b), have no obligation to
propose to its shareholders the Amended Employee Plan (or one or more of the
Proposed Amendments which are a part of the Amended Employee Plan).
(c) In accordance with Section 13 of the
Employee Plan, in the event the Spin-Off Transaction is consummated, the
exercise price of Employee's existing options will be adjusted based on the
fair market value of the Trust's assets that will remain in the Trust (or will
be contributed to a subsidiary partnership) and the fair market value of the
assets that will be contributed to the spin-off company, as determined by Dean
Witter Reynolds Inc.
(d) In the event the Gershenson
Transaction or an Alternative Transaction that includes the adoption of the
Proposed Amendment set forth as item 4 on Exhibit C is consummated, the Trust
will provide the Employee (or any subsequent holder of the Employee's options
granted under the Employee Plan) with the same registration rights on the same
terms and conditions that are granted in connection with such transaction
(except that the Trust shall be permitted to modify such rights to the extent
necessary to reflect any differences between the form of security held by the
Employee and the form of the security held by the persons which are provided
such registration rights in such transaction).
(e) In the event the Employee resigns as
a trustee of the Trust prior to the expiration of his term due to a breach by
the Trust of its obligations under this Agreement or under the Master Asset
Contribution Agreement to be entered into by the Trust and Gershenson in
connection with the Gershenson Transaction that materially and adversely
impacts Employee's rights or benefits as a trustee, then, notwithstanding such
resignation, Employee shall be deemed to have satisfied the requirements for
"retirement" under the Amended Employee Plan.
6. CONTRIBUTION TO SAVINGS PLAN. The Trust
shall make a discretionary contribution consistent with past practice to the
Trust's Retirement Savings Plan for Employee's account during any year in which
the Employment Agreement remains in effect and
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shall make a pro rata contribution for any portion of a year in which the
Employment Agreement remains in effect.
7. CONTINUATION OF MEDICAL AND DENTAL COVERAGE.
(a) For the 14 month period following the termination of the Employment
Agreement, the Trust shall provide Employee with medical coverage no less
favorable than (i) the medical coverage Employee is currently receiving under
the Trust's health plan in existence on the date hereof and (ii) the medical
coverage presently received by the executive officers of Gershenson under the
Gershenson health plan in existence on the date hereof.
(b) The Trust shall pay Employee an
amount equal to the maximum premium payment per month for Employee's current
dental coverage for the 14 month period following termination of the Employment
Agreement.
8. ASSIGNMENT OF LIFE INSURANCE POLICY. On the
Transaction Date, the Trust, at the Employee's election, shall assign to
Employee the key man life insurance policy maintained by the Trust on
Employee's life, provided that Employee simultaneously reimburse the Trust for
any premiums paid by the Trust on behalf of Employee which are unearned by
Employee as of such date.
9. EXCHANGE OF RELEASES. Upon termination of
the Employment Agreement and Employee's employment by the Trust pursuant to
this Agreement (i) Employee shall execute and deliver to the Trust a release,
substantially in the form of Exhibit D attached hereto and (ii) the Trust shall
execute and deliver to Employee a release, substantially in the form of Exhibit
E attached hereto.
10. ACKNOWLEDGEMENT. The Trust hereby advises
Employee that Employee has been employed by the Trust and/or the Trust's
predecessors (including Resources Pension Shares 1, Resources Pension Shares 2,
Resources Pension Shares 3 and Integrated Resources Pension Shares 4) since
October 1, 1981. The Trust and Employee hereby acknowledge that Employee shall
have provided the Trust and/or its predecessor entities with 15 years of
continuous service on October 1, 1996.
11. LEGAL FEES. The Trust shall reimburse
Employee for legal fees incurred by Employee in connection with this Agreement
up to a maximum of $35,000. The Trust shall make the payment within 10 days
after receipt of reasonably appropriate documentation evidencing the incurrence
of such legal fees.
12. MISCELLANEOUS.
(a) Assignment. This Agreement may not
be assigned by Employee. This Agreement shall be binding upon and inure to the
benefit of Employee and his successors and legal representatives.
(b) Exclusive Agreement; Amendment.
This Agreement supersedes all prior agreements among the parties with respect
to its subject matter, is intended as a complete and exclusive statement of the
terms of the Agreement between the parties with
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respect thereto and cannot be changed or terminated except by a written
instrument executed by the Trust and Employee.
(c) Termination. The representations,
warranties, covenants and agreements of the parties as set forth in paragraphs
2, 3, 5, 6, 7, 8 and 9 of this Agreement shall automatically terminate in the
event (i) the Employment Agreement is terminated pursuant to its terms on a
date which precedes the termination of the Employment Agreement pursuant to the
terms of this Agreement or (ii) the Transaction Date occurs after December 31,
1995. The covenants and agreements of the Trust as set forth in paragraph 4 of
this Agreement shall automatically terminate in the event (i) the Employment
Agreement is terminated pursuant to its terms (other than as a result of
Employee's death or disability) on a date which precedes the termination of the
Employment Agreement pursuant to this Agreement or (ii) (x) the Employment
Agreement is terminated as a result of Employee's death or disability on a date
which precedes the termination of the Employment Agreement pursuant to this
Agreement and (y) the Gershenson Transaction or an Alternative Transaction (as
such term is defined in paragraph 4) is not consummated on or before December
31, 1995.
(d) No Waiver. Nothing contained herein
nor the execution of this Agreement by the Employee shall operate as a waiver
of the Employee's right to assert that, notwithstanding whether the Gershenson
Transaction is consummated, a Business Change Event has occurred.
(e) Additional Parties. In the event
the Trust completes a transaction which involves the transfer of a material
portion of its assets to one or more subsidiaries or controlled affiliates or
the acquisition of a material amount of assets by one or more subsidiaries or
controlled affiliates, the Trust will cause each such subsidiary or affiliate,
except for subsidiaries or other affiliates succeeding to ownership of the
Mortgage Loans through a Spin-Off Transaction or third parties purchasing one
or more of the Mortgage Loans, to assume on a joint and several basis with the
Trust and each other all obligations of the Trust hereunder. In the event the
Trust completes a transfer of a material portion of its assets to an unrelated
third party, the Trust shall prior to making a distribution to its shareholders
adequately reserve for any remaining liabilities under this Agreement.
(f) Governing Law. This Agreement and
all amendments hereof shall be governed by the internal law of the State of New
York, without regard to conflicts of law principles thereof.
RPS REALTY TRUST
By:/s/ Joel M. Pashcow
------------------------------------
Name: Joel M. Pashcow
Title: Chairman
/s/ Herbert Liechtung
---------------------------------------
Herbert Liechtung
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EXHIBIT A
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RPS REALTY TRUST
733 THIRD AVENUE
NEW YORK, NEW YORK 10017
July 14, 1994
RAMCO-GERSHENSON, INC.
27600 NORTHWESTERN HIGHWAY
SUITE 200
SOUTHFIELD, MICHIGAN 48034
Gentlemen:
This letter (the "LETTER OF INTENT") sets forth the principal
terms and conditions upon which RPS Realty Trust (THE "COMPANY") proposes to
negotiate an acquisition of assets that will be effectuated through a
contribution of certain assets of Ramco-Gershenson, Inc. and its affiliates
(collectively, "RAMCO") and certain assets of the Company to a Delaware limited
partnership (the "OPERATING PARTNERSHIP") to be formed by the Company (the
"TRANSACTION"). This Letter of Intent represents only our current good faith
intention to negotiate and enter into a definitive Asset Contribution Agreement
relating to the Transaction. The date of the closing of the Transaction is
referred to herein as the "CLOSING DATE".
1. THE CONTRIBUTION.
A. Structure of the Contribution.
(a) Ramco will contribute to the Operating Partnership
the following assets and properties: (i) the shopping center properties listed
on Schedule 1 (including the development land and development out parcels and
options on such development land owned or controlled by Ramco as specified on
such Schedule) (collectively, the "RAMCO PROPERTIES"), subject to the Ramco
Properties' existing liabilities as listed and described on Schedule 2, and
(ii) 100% of the non-voting
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common stock (generally entitled to dividends equal to 99% of net cash flow)
and 5% of the voting common stock (collectively, the "RAMCO MANAGEMENT STOCK")
of the corporation that will hold Ramco's property management contracts with
third parties as set forth on Schedule 3 (collectively, the "RAMCO THIRD PARTY
MANAGEMENT CONTRACTS"). (The Ramco Properties and the Ramco Management Stock
are collectively referred to herein as the "RAMCO CONTRIBUTION ASSETS".)
Excluded from the Ramco Properties will be the outlots owned by Ramco which are
not useful for the development or expansion of retail shopping centers
contributed to the Company as set forth on Schedule 4, which outlots will not
be developed by Ramco. Subject to adjustment as set forth in subparagraphs (c)
and (d) below, Ramco will receive a limited partnership interest in the
Operating Partnership based on the agreed upon value of the Ramco Contribution
Assets as a fraction of the agreed upon value of all the assets contributed to
the Operating Partnership; provided, however, in no event will Ramco receive an
interest in the Operating Partnership that exceeds 37%. The agreed upon value
of the Ramco Contribution Assets will be determined in accordance with Schedule
5. Schedule 5.1 illustrates the application of Schedule 5 based on certain
assumptions. All out-of-pocket costs incurred by Ramco related to options on
development land owned by Ramco that are contributed to the Company (other than
Office Max) shall be reimbursed by the Company from funds available under the
Company's line of credit at such time as the line of credit is in place. If
Ramco incurs out-of-pocket costs relating to Office Max that are not borrowed,
such costs shall be reimbursed by the Company from funds available under the
Company's line of credit, up to a maximum of $1,980,000 (inclusive of all
borrowed amounts).
(b) Concurrently with the contribution of the Ramco
Contribution Assets to the Operating Partnership (i) all the property
management contracts relating to the Ramco Properties will be canceled and (ii)
the Company and the Operating Partnership will be released from any obligation
as to debts in excess of $5,000,000 on the Ramco Properties that are owed to
Ramco.
(c) In the event projected net operating income from the
Ramco Jackson, Michigan property (the "JACKSON PROPERTY") during the 12 month
period commencing October 1, 1994 (based on Qualifying Leases (as such term is
defined in Schedule 5) in place as of such date) is less than $2,824,000, Ramco
will have the right to increase its interest in the Operating Partnership based
on the performance of the Jackson Property from October 1, 1994 until the date
which is one year from the closing in accordance with the formula set forth in
Schedule 6.
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(d) In the event that as of October 1, 1994 Ramco has
entered into a Qualifying Lease for new space to be constructed in the area of
the Tel-Twelve Mall (the "TEL-TWELVE PROPERTY") previously occupied by
Montgomery Ward Garden Shop (the "TEL-TWELVE LEASE"), (i) for purposes of
making the calculation set forth on Schedule 5, projected net operating income
from the Tel-Twelve Property will be computed without regard to the existence
of the Tel-Twelve Lease and (ii) Ramco will have the right to increase its
interest in the Operating Partnership based on the formula set forth in
Schedule 6.1.
(e) The Company will contribute (i) the shopping center
properties listed on Schedule 7 (collectively, the "COMPANY PROPERTIES") and
(ii) $75,000,000 in cash (the "COMPANY CASH") to the Operating Partnership.
(The Company Properties and the Company Cash are referred to collectively
herein as the "COMPANY CONTRIBUTION ASSETS".) The Company Contribution Assets
will have an agreed upon value of $123,657,000, or, if, as of October 1, 1994,
projected net operating income from the Company Properties is less than
$5,200,000, such lesser agreed upon amount as determined by an independent
appraiser selected by the parties. The Company will initially receive an
interest in the Operating Partnership based on the agreed upon value of the
Company Contribution Assets as a fraction of the agreed upon value of all the
assets contributed to the Operating Partnership as described in subparagraph
(a) and this subparagraph (e). The Company's interest in the Operating
Partnership will be divided into two parts: (i) a 1% general partner interest
and (ii) a limited partnership interest equal to the difference between (x) 99%
and (y) the limited partnership interest allocated to Ramco.
(f) Immediately prior to the consummation of the
Transaction, the Company will, if it does not dispose of such assets prior to
such date, contribute its mortgage loans, its Saratoga Street, Baltimore,
Maryland property, its Norgate property, a certain amount of cash and certain
other tangible and intangible assets (including, without limitation, furniture,
fixtures and equipment) to a qualified REIT subsidiary ("RPS MORTGAGE"). The
stock of RPS Mortgage will be distributed to the shareholders of the Company in
a spin-off by means of a pro rata dividend (the "SPIN-OFF TRANSACTION"). In
connection with the Spin-Off Transaction, RPS Mortgage will assume the
liabilities of the Company relating to the assets that were contributed to RPS
Mortgage and the Company's leases for office space.
(g) Following or contemporaneous with the Spin-Off
Transaction and prior to the closing of the Transaction, the Company will merge
into a subsidiary Maryland business trust and will change its name to
Ramco-Gershenson Properties Trust.
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(h) Following or contemporaneous with the Spin-Off
Transaction and prior to the closing of the Transaction, the Company will
combine its shares of beneficial interest by means of a 4 for 1 reverse split.
B. Structure of the Operating Partnership.
(a) The Company will be the sole general partner of the
Operating Partnership and will be responsible for the management of the
Operating Partnership's business and affairs. The holders of the units of
limited partnership interest (the "OP UNITS"), as limited partners in the
Operating Partnership, will not have any right to participate in the management
of the Operating Partnership except that the Company (in its capacity as sole
general partner of the Operating Partnership) will not have the right, without
the approval of limited partners owning at least 85% of the OP Units, to (i)
amend the Operating Partnership's limited partnership agreement (the
"PARTNERSHIP AGREEMENT") in any manner that would materially adversely affect
the rights, privileges and preferences of the OP Units, (ii) dissolve or
terminate the Operating Partnership prior to its stated date of dissolution or
termination (other than a dissolution or termination which occurs without a
vote pursuant to the Partnership Agreement or applicable law) or (iii) amend
the Partnership Agreement in a manner that would subject the holders of the OP
Units to any personal liability beyond their interest in the Operating
Partnership.
(b) Following the closing of the Transaction, the Company
and Ramco will agree to conduct their respective real estate acquisition,
management and development businesses through the Operating Partnership.
(c) Subject to compliance with the allocations mandated
under Section 704(c) of the Internal Revenue of the Code, profits, losses and
distributions from the Operating Partnership shall be made in accordance with
each partner's percentage interest in the Operating Partnership. Profits and
losses will be allocated to the partners in the Operating Partnership utilizing
the "traditional" allocation method.
C. Terms of the OP Units
(a) The limited partnership interests in the Operating
Partnership will be divided into such number of OP Units that, following such
division, will permit the OP Units to be exchanged for the Company's shares of
beneficial interest ("SHARES") on a one-for-one basis. This one-for-one
exchange ratio will be adjusted in the event of a stock combination, stock
split, stock dividend or other event having a dilutive or anti-dilutive effect
on the limited partners' exchange rights.
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Upon the effectiveness of an exchange of OP Units for Shares, the Company will
be issued one OP Unit in respect of each OP Unit that was redeemed.
(b) In the event a limited partner desires to cause the
Company to exchange his OP Units for Shares, the Company will have the option
(the "CASH OPTION") to exchange such limited partner's OP Units for cash equal
to the product of (i) the number of Shares then issuable upon the exchange
times (ii) the current per share market price of the Shares based on the
average closing prices of the Shares on the New York Stock Exchange for the
five consecutive trading days ending on the date the notice of exchange was
made. The Company will be issued one OP Unit in respect of each OP Unit
exchanged by the Company pursuant to the Cash Option.
(c) Any exchange of OP Units for Shares will be subject
to compliance with the ownership limitations (i.e., excess shares) included in
the Company's organizational documents.
(d) Except as otherwise permitted by at least a majority
of the Company's independent trustees, all limited partners will be prohibited
from exercising their exchange rights for a period of one year from the Closing
Date except, in the event of the death of a limited partner prior to such time,
the estate of such limited partner shall have the right to exercise such
exchange rights to the minimum extent necessary to obtain the funds needed to
pay any estate taxes that may be payable at such time. Except in connection
with a merger, business combination or other reorganization transaction, the
Company will not exchange any of its OP Units as long as there are any other
holders of such OP Units.
D. Board of Trustees
(a) Upon the closing of the Transaction, Ramco shall have
the right, subject to compliance with the Company's organizational documents,
to designate four trustees (not less than two of whom shall be independent of
Ramco, the Company and their respective affiliates) to serve on the Company's
nine person Board of Trustees (the "BOARD OF TRUSTEES"). The Company will
agree to exercise its best efforts to secure the resignation of up to four of
its trustees (other than Messrs. Pashcow, Liechtung, Goldberg and Blank) as is
necessary to enable the Ramco designees to be elected to the Board of Trustees.
Messrs. Pashcow, Liechtung, Goldberg and Blank, as well as one other existing
trustee or another person designated by the Company, will serve as trustees of
the Company following the closing.
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(b) The two persons affiliated with Ramco who will become
members of the Board of Trustees will be Joel Gershenson and Dennis Gershenson.
(c) In the Company's discretion, the Company shall have
the right to amend its organizational documents to provide that newly created
trusteeships or vacancies on the Board of Trustees shall be filled by a
majority of the independent trustees then in office.
(d) At all times, a majority of the Board of Trustees
shall be independent of Ramco, the Company and their affiliates.
(e) The Board of Trustees will appoint a non-voting
Advisory Committee consisting of Michael A. Ward, Richard Gershenson and Bruce
Gershenson. The members of the Advisory Committee will be available to consult
with and advise the Board of Trustees as requested.
E. Uses of Contributed Cash
(a) The cash contributed to the Operating Partnership by
the Company shall be used as follows: (i) to pay all fees and expenses
relating to the Transaction (other than prepayment penalties or premiums and
any other expenses and related legal fees in excess of $250,000 relating to the
debt listed on Schedule 2 and classified as Ramco Loan Payoffs, any cash
amounts paid by Ramco to any third party in order to obtain his or its consent
to the Transaction or to any Ramco investor who owns interests in the Ramco
Properties, and such closing costs that are customarily paid by sellers of real
property in the localities where the Ramco Properties are located), one-half of
all title insurance costs and recording charges incurred in connection with the
Transaction, and tenant improvement costs incurred at the Ramco Properties with
respect to leases entered into after October 1, 1994 that are not otherwise
included in whole or in part, in RNOI (as such term is defined in Schedule 5)
(other than with respect to the Tel-Twelve Lease and Qualifying Leases at the
Jackson Property entered into after October 1, 1994 that are not otherwise
included, in whole or in part, in RNOI), (ii) if the Company has not received a
commitment for a line of credit as of the closing of the Transaction, to
establish a reserve equal to two times the estimated monthly general and
administrative expenses of the Company, (iii) to prepay the remaining
$5,000,000 of the debt associated with the Ramco Properties payable to Ramco
and (iv) the balance, to prepay the debt listed on Schedule 2 and classified as
Floating Rate or Prepayable Short-Term Loans and Short-Term Advantageous Rate
Loans, as agreed to by the parties.
6
<PAGE> 15
(b) All prepayment penalties or premiums and expenses
(including, without limitation, legal fees relating to such prepayments) in
excess of $250,000 relating to or triggered by the prepayment of any of the
debt listed on Schedule 2 and anticipated to be prepaid as set forth in
subparagraph (a) above shall be paid by Ramco.
(c) Prior to the closing of the Transaction, Ramco shall
use its best efforts to (i) refinance the debt listed on Schedule 2 and
classified as Floating Rate or Prepayable Short-Term Loans and Short-Term
Advantageous Rate Loans (after making the prepayments described in Paragraph
1.E.(a)) on the terms described in clause (ix) of Paragraph 4.A. and (ii)
obtain a line of credit in an amount to be determined by the parties which
would be used to fund the future development and acquisition activities of the
Company.
2. MANAGEMENT AND CONFLICTS.
A. The five principals of Ramco (collectively, the "RAMCO
PRINCIPALS") will enter into agreements with the Company pursuant to which they
will agree to conduct all of their real estate ownership, acquisition,
management and development activities (other than certain limited activities
relating to their existing video arcade and fast food franchise businesses and
activities relating to the properties listed on Schedule 8 that will be
excluded from the Transaction (collectively, the "EXCLUDED PROPERTIES"))
through the Company and in connection therewith the Ramco Principals will agree
to offer all real estate opportunities of which they become aware (other than
opportunities relating to the Excluded Properties) to the Company. The Ramco
Principals (other than Joel Gershenson and Dennis Gershenson) will enter into
non-competition agreements with the Company pursuant to which such Ramco
Principals will agree not to compete, directly or indirectly, with the Company
with respect to the ownership, acquisition, management and development of real
estate (except with respect to the Excluded Properties) until the later of (i)
three years from the Closing Date or (ii) the date such Ramco Principal is no
longer an officer or director of the Company; provided, however, in the event
any such Ramco Principal becomes Chairman, Vice Chairman, President or Chief
Executive Officer of the Company (or holds any other office in the Company that
is vested with powers and duties substantially similar to those powers and
duties typically vested by corporations or business trusts in the office of
Chairman and President), the term of such Ramco Principal's non-competition
agreement shall be extended until the later of (i) four years from the Closing
Date or (ii) one year after the date such Ramco Principal is no longer an
officer or director of the Company. Joel Gershenson and Dennis Gershenson will
enter into similar non-competition agreements with the Company
7
<PAGE> 16
except that the term of such agreements will extend until the later of (i) four
years from the Closing Date or (ii) one year after the date such Ramco
Principal is no longer an officer or director of the Company.
B. Each of the Ramco Principals will enter into three year
employment agreements with the Company pursuant to which each such Ramco
Principal will be paid an annual base salary of $100,000 and shall receive such
other perquisites (including, without limitation, stock options and bonuses)
that are customarily provided by similar real estate investment trusts to
comparable officers as agreed to by the parties. The Ramco Principals will
hold the following offices with the Company: Chairman: Joel Gershenson;
President and Chief Executive Officer: Dennis Gershenson; Chief Operating
Officer and Executive Vice President: Michael Ward; Executive Vice President
and Secretary: Richard Gershenson; Executive Vice President and Treasurer:
Bruce Gershenson.
C. The Ramco Principals will not be permitted to exchange or
dispose of all or any portion of their OP Units during the 30 month period
following the closing of the Transaction without the prior written consent of a
majority of the Board of Trustees (including a majority of the independent
trustees) (the "RAMCO LOCK-UP") other than to the minimum extent necessary to
fund the payment of estate taxes due upon the death of any Ramco Principal.
The third party investors of Ramco who will receive OP Units in connection with
the Transaction will not be permitted to dispose of all or any portion of their
OP Units during the one year period following the closing of the Transaction
without the prior written consent of a majority of the Board of Trustees
(including a majority of the independent trustees) other than to the minimum
extent necessary to fund the payment of estate taxes due upon the death of any
such investor. The Company will grant to the Ramco Principals "piggyback"
registration rights at the time of closing that will become effective upon the
expiration of the Ramco Lock-Up and, with certain exceptions (including,
without limitation, the underwriter's cutback) to be agreed to by the parties,
grant to the Ramco Principals the right to have any unregistered Shares held by
them registered incidentally to any registration being conducted by the Company
of its shares.
D. During the 12 month period following the closing of the
Transaction, each of the Ramco Principals will be permitted to pledge up to 25%
of the OP Units initially held by him to a bank or other financial institution;
following the expiration of such 12 month period and during the remaining term
of the Ramco Lock-Up, the Ramco Principals will be permitted to pledge up to
50% of the OP Units initially held by him to a bank or other financial
institution.
8
<PAGE> 17
E. Upon the closing of the Transaction, the Company will satisfy
(without using the Company Cash that will be contributed to the Operating
Partnership) and/or, at the election of Joel M. Pashcow ("PASHCOW") and Herbert
Liechtung ("LIECHTUNG"), RPS Mortgage will assume the remaining obligations of
the Company under its existing employment agreements with Pashcow and
Liechtung.
F. Prior to the closing of the Transaction, the Company may amend
the terms and conditions of its 1989 Stock Option Plan (the "EXISTING OPTION
PLAN") so that, immediately prior to the Spin-Off Transaction, each current
holder of an option (individually, an "OPTION" and collectively, the "OPTIONS")
to purchase existing shares in the Company will receive, in exchange therefore,
two separately exercisable Options: one to purchase Shares and the other to
purchase shares in RPS Mortgage, each exercisable for the same number of
shares, and containing substantially equivalent terms, as the existing Option.
The exercise price for each new Option in the Company will be determined by
adjusting existing exercise price ($5.75 per share) based on the relative fair
market value of the assets that will be contributed to the Operating
Partnership and the assets that will be contributed to RPS Mortgage. In
addition, the total number of shares for which Options may be granted under the
Existing Option Plan and the exercise price of outstanding Options will be
adjusted to reflect the impact of the Company's 4 for 1 reverse split. Similar
adjustments will be made to the Company's 1989 Trustees' Stock Option Plan and
the options outstanding under such plan (the "TRUSTEES' PLAN"). In addition,
the Company shall have the right to amend the Trustees' Plan to extend the
exercise date for those options granted to any trustee who resigns prior to the
expiration of such trustee's term.
G. Prior to the closing of the Transaction, the Company will have
the right to amend the terms of the Existing Option Plan as follows: (i) the
expiration date of the Existing Option Plan and all outstanding Options will be
extended for five years until December 6, 2004; (ii) the three month period
during which former employees have the right to exercise outstanding Options
will be extended to become a one year period and will not be triggered if a
former employee continues to serve the Company in a trustee capacity; (iii) the
Options will be assignable to members of an optionee's immediate family
(including trusts for such family members); and (iv) a retirement provision
will be added that will provide for a 5 year exercise period for following
Retirement (as defined below). "Retirement" shall mean voluntary retirement
from the Company at least age 55 provided the person in question has provided
the Company and its predecessors with at least 15 years of continuous service.
9
<PAGE> 18
H. Prior to the closing of the Transaction, the Board of Trustees
will adopt a new employee stock option plan (the "NEW OPTION PLAN") that will
provide for the grant of options equal to difference between (i) 9% of the
total number of issued and outstanding Shares of the Company (on a fully
diluted basis assuming the exchange of all OP Units for Shares) and (ii) the
number of options granted under the Existing Option Plan and the Trustees'
Plan. The New Option Plan will have terms and conditions that are
substantially similar to those included in the Existing Option Plan, as amended
as described above. Except as set forth in Paragraph 2.I. below, options under
the New Option Plan shall be reserved for grant solely to employees of the
Company.
I. Subject to satisfaction of Pashcow's existing employment
agreement with the Company, upon the closing of the Transaction, Pashcow shall
be (i) elected Vice Chairman and (ii) pursuant to a new 5 year employment
agreement, will be granted an additional 180,000 options (that will vest over a
term of not more than 3 years) under the New Option Plan at a exercise price
based on the average closing price of the Shares on the New York Stock Exchange
for the 30 trading days following the Closing Date. At the closing of the
Transaction, each of the Ramco Principals will be granted 24,000 options (that
will vest over a term of not more than 3 years) at the exercise price described
above. Pashcow's employment agreement will provide that if during the term of
his employment agreement he is replaced as a trustee, he will receive the same
benefits from the Company that he would have received had Pashcow remained a
trustee throughout the term of his employment agreement.
J. Prior to the closing of the Transaction, the Board of Trustees
will adopt a trustees' medical health insurance plan that will provide
satisfactory health benefits to the Company's trustees not otherwise covered.
K. Ramco shall grant to the Company the option, exercisable at
any time during the 10 year period commencing on the closing of the
Transaction, to acquire, subject to the receipt of all necessary consents,
Ramco's interest in any Excluded Property (other than any part of the Summit
Place complex) for an amount (the "OPTION PRICE") (payable either in cash or
subject to compliance with applicable securities laws, OP Units) equal to the
lesser of (i) Ramco's net cash investment in such property (including any tax
payable by Ramco as a result of the exercise of the option) and (ii) the fair
market value of Ramco's interest in such property; provided, however, if at any
time during the term of the option Ramco receives a bona fide offer to sell its
interest in an Excluded Property that Ramco is willing to accept or receives a
bona fide offer to sell the Excluded Property that Ramco is willing to accept,
the Company shall have the right to acquire Ramco's interest in such
10
<PAGE> 19
Excluded Property at the price for such interest or for the amount Ramco would
have received had the Excluded Property been sold for the proposed price. In
addition, if during such 10 year period Ramco's direct or indirect interest in
the Summit Place complex shall equal 25% or more, the Company shall immediately
receive an option (the "Summit Place Option") to acquire Ramco's interest in
such property at a price equal to 90% of its fair market value. The exercise
of the Summit Place Option shall be subject to the receipt of all consents
needed to transfer Ramco's interest in the Summit Place Complex.
3. FUTURE DIVIDENDS.
Following the closing of the Transaction, the Company will
promptly announce its intention to pay a dividend based on a payout ratio of
85% of funds from operations ("FFO").
4. CONDITIONS TO THE TRANSACTION.
A. The definitive Asset Contribution Agreement will provide that
the consummation of the Transaction will be subject to fulfillment, at or prior
to the Closing Date, of each of the following conditions (among others): (i)
the preparation, execution and delivery of a definitive Asset Contribution
Agreement and related documents containing such provisions as are customary to
transactions of this type, in form and substance reasonably satisfactory to the
parties, (ii) the Board of Trustees and the shareholders of the Company shall
have approved the Transaction, (iii) if applicable to the Transaction, the
waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
shall have expired, (iv) all required material consents of third parties
(including, without limitation, consents from the mortgagees of record holding
the Ramco Property debt) shall have been obtained, (v) the Spin-Off Transaction
shall have been consummated and in connection therewith the Company shall have
received a no-action letter from the Securities and Exchange Commission (the
"SEC"), satisfactory to the Company, generally to the effect that the issuance
of the RPS Mortgage stock to the Company's existing shareholders in connection
with the Spin-Off Transaction does not require registration under the
Securities Act of 1933, (vi) the Company Cash shall equal $75,000,000 (reduced
by any Transaction expenses advanced by the Company prior to closing), (vii)
there shall not be enacted, entered, promulgated or enforced any statute, rule,
regulation, executive order, decree, preliminary or permanent injunction or
restraining order which prohibits the consummation of the Transaction, (vii)
the absence of any material adverse change in the Company Properties or the
Ramco Contribution Assets, (ix) the debt listed on Schedule 2 and classified as
Floating Rate or
11
<PAGE> 20
Prepayable Short-Term Loans and Short-Term Advantageous Rate Loans (after
utilizing the Company Cash in the manner set forth in paragraph 1.E.) shall
have been refinanced (the "Refinanced Loan") on the following terms: (a) the
principal amount of the Refinanced Loan, after taking into account all borrowed
transaction costs, shall not exceed $92,500,000; (b) the annual interest
expense (all of which will be payable currently) relating to the Refinanced
Loan shall not exceed $8,485,000; (c) the Refinanced Loan shall have a term of
not less than 10 years; (d) the principal amount of the Refinanced Loan shall
amortize on a schedule of not less than 30 years (unless otherwise agreed to by
the parties); (e) the Refinanced Loan shall not be secured by more than
$150,000,000 in properties; and (f) the Refinanced Loan shall have commercially
reasonable terms; (x) the satisfaction of the Floor Amount Condition (as
defined below); and (xi) the receipt by the Company's Board of Trustees of an
opinion from Dean Witter Reynolds Inc. ("DEAN WITTER"), satisfactory to such
board, relating to the fairness, from a financial point of view, of the
Transaction to the existing shareholders of the Company.
B. Ramco's obligation to proceed with the Transaction is subject
to the condition that Ramco and its investors will receive a limited
partnership interest in the Operating Partnership that is 30% or more (the
"FLOOR AMOUNT CONDITION") (assuming for this purpose that Ramco's projected net
operating income from (i) the Jackson Property for the 12 month period
commencing October 1, 1994 is $2,824,000 and (ii) the Tel-Twelve Property for
the 12 month period commencing October 1, 1994 includes a full 12 months of
revenues attributable to the Tel-Twelve Lease). (For purposes of making the
calculation in clause (ii) above, revenues from the Tel-Twelve Lease shall not
be less than $182,000 or more than $510,000 notwithstanding the actual terms of
such lease or if such lease exists.) If at any time the Company notifies Ramco
that in its good faith judgment (after application of the assumption described
in the following sentence) Ramco and its investors would receive a limited
partnership interest in the Operating Partnership that is less than the Floor
Amount Condition, Ramco, within 5 business days of the receipt of such notice,
will be obligated to either (x) terminate the Asset Contribution Agreement or
(y) reduce the Floor Amount Condition to the percentage specified in the
Company's notice as determined in manner consistent with the formula for
allocating interests in the Operating Partnership and after application of the
assumption that the interest rate on the Refinanced Loan will be 150 basis
points over prevailing rates for 10 year United States Treasury Bonds.
12
<PAGE> 21
5. PUBLIC ANNOUNCEMENTS.
Except as may be required by law or under the Company' listing
agreement with the New York Stock Exchange, neither of the parties hereto shall
make any public announcement regarding the subject matter of this Letter of
Intent without the prior consent of the other; provided, however, neither the
Company nor its Board of Trustees shall be prohibited from issuing or making
available any press release to any wire service or investment banking firm or
making any disclosure to the Company's shareholders (through letter, SEC filing
or otherwise) that, in the good faith judgment of the Company's Board of
Trustees, is necessary to discharge the Board of Trustees' fiduciary duties
owed to the Company's shareholders. Each party shall use commercially
reasonable efforts to coordinate any public announcements and to consult with
one another prior thereto.
6. NO SHOPPING.
Each party will cease all existing discussions with any third
party with respect to, and will cease all activities relating to, any merger,
consolidation, sale of a substantial portion of assets, tender offer, initial
public offering or any similar transaction or business combination which would
defeat the intent of this Letter of Intent (collectively, an "ACQUISITION
PROPOSAL"). In addition, neither party will, nor will either party authorize
or permit its directors, trustees or employees or any attorneys, accountants,
investment bankers or other representatives retained by it to, directly or
indirectly, solicit or encourage the making of any inquiries or the making of
any proposal which it is reasonably expected may lead to any Acquisition
Proposal; provided, however, that nothing contained in this paragraph shall
preclude any action taken by the Company's Board of Trustees (including,
without limitation, responding to requests for information from all persons
(including, without limitation, persons with whom the Company had discussions
prior to the date of this Letter of Intent) and participating in negotiations
regarding alternative transactions (including Acquisition Proposals) involving
the Company) that, in the good faith judgment of the Board of Trustees, is
necessary to discharge the Board of Trustees' fiduciary duties owed to the
Company's shareholders. (For purposes of determining the duties that the Board
of Trustees owes to its shareholders, the Company has advised you that for
state law purposes it is treating the Transaction as a sale of control of the
Company). In the event the Company receives a written offer for an Acquisition
Proposal, it will promptly advise Ramco of the existence of such offer. The
provisions of this paragraph shall not apply to any assets that will not be
included in the Transaction.
13
<PAGE> 22
7. COMMERCIALLY REASONABLE EFFORTS.
Each of the parties hereto agrees on a prompt basis to proceed
with the negotiation and execution and delivery of a definitive Asset
Contribution Agreement embodying the terms relating to the Transaction set
forth in this Letter of Intent and containing such other provisions as are
customary and mutually agreed to by the parties.
8. CERTAIN FEES AND EXPENSES.
A. The definitive agreement relating to the Transaction shall
provide that if the Company terminates the transaction contemplated by the
Asset Contribution Agreement because either (i) the Company entered into an
alternative transaction with a third party or (ii) Dean Witter was unable to
render a fairness opinion in connection with the Transaction (other than as a
result of the condition of the Ramco Contribution Assets), the Company will
reimburse Ramco for all reasonable out-of-pocket expenses incurred by Ramco in
connection with the Transaction up to a maximum of $1,250,000 (without any
offset or credit for any expenses advanced by the Company in connection with
the Refinanced Loan).
B. If the Transaction is consummated, all fees and expenses
relating to the Transaction shall be paid by the Company (other than any
prepayment penalties or premiums and expenses and legal fees in excess of
$250,000 relating to the prepayment of the debt listed on Schedule 2 and
classified as Ramco Loan Payoffs, any cash amounts paid by Ramco to any third
party in order to obtain its consent to the Transaction or to any Ramco
investor, and such closing costs that are customarily paid by sellers of real
property in the localities where the Ramco Properties are located) but
including one-half of all title insurance costs and recording costs incurred in
connection with the Transaction, and tenant improvement costs incurred at the
Ramco Properties with respect to leases entered into after October 1, 1994 that
are not otherwise included, in whole or in part, in RNOI (other than with
respect to the Tel-Twelve Lease, and Qualifying Leases at the Jackson Property
entered into after October 1, 1994 that are not otherwise included, in whole or
in part, in RNOI).
C. From and after execution of the Asset Contribution Agreement,
the Company will, upon receipt by the Company of the undertaking described
below, advance all reasonable expenses relating to the Refinanced Loan that
satisfies the terms described in paragraph 4.A.(ix). The Company's obligation
to advance such expenses shall be subject to receipt of an undertaking from
Ramco and the Ramco Principals to repay such amounts in the event the Asset
Contribution Agreement is
14
<PAGE> 23
terminated as a result of a breach by Ramco of any of its representations,
warranties or covenants set forth in the Asset Contribution Agreement.
D. Notwithstanding anything to the contrary contained herein,
Ramco shall be responsible for any transfer taxes relating to the contribution
of the Ramco Properties to the Company. Ramco and RPS shall cooperate in
minimizing any such transfer taxes which may be so payable. In doing so Ramco
shall provide the Company with such assurances and indemnifications as may be
reasonably requested by the Company against the imposition of any such transfer
taxes.
9. COOPERATION.
Each party hereto will use commercially reasonable efforts to
(a) furnish to the other parties such necessary information and reasonable
assistance as such other parties may reasonably request in connection with the
transactions contemplated hereby, (b) cooperate in preparing, causing to be
filed with the SEC and to be cleared for mailing a proxy statement relating to
the Transaction and the Spin-off Transaction, (c) provide the officers,
employees, attorneys, accountants, investment bankers and other representatives
of the other party with reasonable access to the properties and personnel of
such party and furnish upon request copies of all books, records, documents and
other information of such party (including, without limitation, interim
financial reports of such party) that relate to the assets or properties that
will be contributed by such party to the Operating Partnership in connection
with the Transaction, and (d) provide such further assistance as the other
party hereto may reasonably request.
10. BINDING EFFECT; TERMINATION.
Except for the provisions of Sections 5, 6, 7, 9, 10, 11, and
12, this Letter of Intent constitutes an expression of mutual intention, is not
a binding obligation on the part of either party hereto and shall not otherwise
create any rights in favor of either of the parties hereto. A binding
agreement with respect to the Transaction will result only from the execution
and delivery of a definitive Asset Contribution Agreement and such other
definitive agreements as the parties determine are necessary to reflect the
respective obligations and rights of the parties with respect to the
Transaction. The provisions of Sections 6, 7 and 9 shall terminate on, and
have no effect following, the earliest of (i) October 15, 1994, (ii) upon
written notice from the Company to Ramco following a good faith determination
by the Company's Board of Trustees that an Acquisition Proposal for an
alternative transaction is more favorable than the Transaction to the Company's
shareholders, or (iii) the execution
15
<PAGE> 24
of a definitive agreement relating to the Transaction; provided, however, such
termination shall not excuse any breach arising prior to the date of such
termination.
11. EXPENSES.
Promptly following the execution and delivery of this Letter
of Intent, the Company and Ramco shall, at the Company's expense, commission
(i) an audit by Deloitte & Touche of the Ramco Properties and, if requested by
the Company, the management corporation, and (ii) a Phase I environmental study
and engineering report on the Company's Properties. In the event (i) this
Letter of Intent is terminated prior to the execution of a definitive Asset
Contribution Agreement and (ii) in the good faith judgment of the Company
projected net operating income from the Ramco Properties for the 12 month
period commencing October 1, 1994 (based on Qualifying Leases in place as of
such date) is less than $26,200,000, Ramco and the Ramco Principals hereby
agree, jointly and severally, to reimburse the Company for all amounts advanced
pursuant to clause (i) of this paragraph 11 (collectively, the "Advanced
Expenses"). Ramco and the Ramco Principals shall reimburse the Company for the
Advanced Expenses within 5 business days after the receipt of a notice from the
Company that the events described in clauses (i) and (ii) above have occurred.
Except for the bankruptcy of a partnership previously disclosed to the Company,
Ramco and the Ramco Principals, hereby agree, jointly and severally, to
reimburse the Company for the Advanced Expenses, within 5 business days after
receipt of a notice from the Company, if the Letter of Intent is terminated or
the Company does not enter into a definitive Asset Contribution Agreement
primarily because one or more of the Ramco Principals was involved during the
past 5 years in one of the events described in Item 401(f) of Regulation S-K
promulgated under the Securities Exchange Act of 1934.
12. MISCELLANEOUS.
The laws of the State of New York shall govern the
interpretation, validity and performance of the terms of this Letter of Intent,
regardless of the law that might be applied under applicable principles of
conflicts of law. The parties acknowledge that this Letter of Intent shall not
affect the parties' respective obligations under the confidentiality letters
dated November 2, 1993 between the Company and Ramco and the Ramco Principals
which shall remain in effect in accordance with the terms thereof. The parties
hereto irrevocably and unconditionally consent to submit to the jurisdiction of
the courts of the State of New York in connection with any actions, suits or
proceedings arising out of or relating to this Letter of Intent, and further
agree that service of any process, summons, notice or
16
<PAGE> 25
document by U.S. Registered Mail to the respective party's address set forth
above (or any other address provided in writing to the other party) shall be
effective service of process for any action, suit or proceeding brought against
a party hereto in any such court. The parties hereto hereby irrevocably and
unconditionally waive any objection to the lack of venue of any action, suit or
proceedings arising out of this Letter of Intent, in the courts of the State of
New York or the United States of America located in the State of New York, and
hereby further irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
13. COUNTERPARTS.
This Letter of Intent may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17
<PAGE> 26
Please acknowledge your agreement to, and acceptance of, the
foregoing, by executing a copy of this agreement in the appropriate space set
forth below and returning the same to the undersigned, whereupon it will
constitute our agreement with respect to the matters contained herein.
Very truly yours,
RPS REALTY TRUST
By:/s/ Herbert Liechtung
---------------------
Herbert Liechtung, President
AGREED AND ACCEPTED
AS OF THE DATE FIRST
ABOVE WRITTEN:
RAMCO-GERSHENSON, INC.
By:/s/ Dennis Gershenson
-----------------------------------
Dennis Gershenson, Vice President-
Finance
/s/ Dennis Gershenson
- ---------------------
Dennis Gershenson
/s/ Joel Gershenson
- -------------------
Joel Gershenson
/s/ Bruce Gershenson
- --------------------
Bruce Gershenson
/s/ Richard Gershenson
- ----------------------
Richard Gershenson
/s/ Michael A. Ward
- -------------------
Michael A. Ward
18
<PAGE> 27
ATTACHMENT TO LETTER OF INTENT
SCHEDULE 1-PART 1
LISTING OF INCLUDED SHOPPING CENTERS
SHOPPING CENTER LOCATION
TEL-TWELVE MALL SOUTHFIELD, MICHIGAN
FRASER SHOPPING CENTER FRASER, MICHIGAN
EASTRIDGE SHOPPING CENTER FLINT, MICHIGAN
ROSEVILLE PLAZA ROSEVILLE, MICHIGAN
NAPLES TOWNE CENTRE NAPLES, FLORIDA
SOUTHFIELD PLAZA SOUTHFIELD, MICHIGAN
TROY TOWNE CENTER TROY, OHIO
SOUTHFIELD PLAZA EXPANSION SOUTHFIELD, MICHIGAN
WEST ALLIS SHOPPING CENTRE WEST ALLIS, WISCONSIN
NORTH TOWNE COMMONS TOLEDO, OHIO
NEW TOWNE PLAZA CANTON, MICHIGAN
FERNDALE TOWNE CENTRE FERNDALE, MICHIGAN
CLINTON VALLEY STRIP STERLING HEIGHTS, MICHIGAN
KENTWOOD TOWNE CENTRE GRAND RAPIDS, MICHIGAN
CLINTON CONSUMER MALL STERLING HEIGHTS, MICHIGAN
ORION PLAZA LAKE ORION, MICHIGAN
WEST OAKS I NOVI, MICHIGAN
SPRING MEADOWS SHOPPING CENTER TOLEDO, OHIO
JACKSON CROSSING JACKSON, MICHIGAN
EDGEWOOD SHOPPING CENTER LANSING, MICHIGAN
WEST OAKS II NOVI, MICHIGAN
OAKBROOK SQUARE FLINT, MICHIGAN
19
<PAGE> 28
ATTACHMENT TO LETTER OF INTENT
SCHEDULE 1 - PART 2
DEVELOPMENT LAND AND DEVELOPMENT OUTPARCELS
<TABLE>
<CAPTION>
PARCEL SIZE
(ACRES)
<S> <C>
ROSEVILLE PLAZA (12 MILE & GRATIOT) .90
NEW TOWNE PLAZA (CANTON TOWNSHIP) 2.0, 2.5
EDGEWOOD TOWNE CENTRE (LANSING) .75, .95
</TABLE>
20
<PAGE> 29
ATTACHMENT TO LETTER OF INTENT
SCHEDULE 1 - PART 3
REIMBURSABLE COSTS RELATED TO
OPTIONS ON DEVELOPMENT LAND OWNED BY RAMCO
<TABLE>
<CAPTION>
OPTIONS &
RELATED
DEVELOPMENT
COSTS
INCURRED
TO 5-12-94
(1)
<S> <C> <C>
JACKSON WEST JACKSON, MICHIGAN 26,297
TROY - LIVERNORS & MAPLE TROY, MICHIGAN 2,483
WARREN-TEN MILE & DEQUINDRE WARREN, MICHIGAN 721
OFFICEMAX-NORTH TOWNE TOLEDO, OHIO 175,468
BENNETT PROPERTY TOLEDO, OHIO 41,574
HORNHOLLOWAY PROPERTY TOLEDO, OHIO 7,320
ROTH PROPERTY TOLEDO, OHIO 871
SARA PROPERTY TOLEDO, OHIO 10,360
WEST OAKS III NOVI, MICHIGAN
SPRINGMEADOWS PHASE III TOLEDO, OHIO
SHELBY TOWNSHIP-HALL ROAD SHELBY TOWNSHIP, MICHIGAN
-------
265,094
=======
</TABLE>
(1) COSTS INCURRED BASED ON ACCOUNTING RECORDS. CERTAIN ITEMS INCLUDING
LEGAL, PROFESSIONAL, ENGINEERING, ENVIRONMENTAL MAY NOT HAVE BEEN INVOICED YET.
COSTS TO BE UPDATED TO DATE OF COMBINATION.
ALL OPTION AND RELATED DEVELOPMENT COSTS INCURRED TO DATE OF COMBINATION WILL
BE REIMBURSED TO RAMCO BY THE REIT. FUTURE PAYMENTS FOR DEVELOPMENT COSTS TO
BE THE RESPONSIBILITY OF THE REIT.
21
<PAGE> 30
ATTACHMENT TO LETTER OF INTENT
SCHEDULE 2
RAMCO PROPERTIES' EXISTING LIABILITIES
SEE REVISED ATTACHED SCHEDULE
REFLECTS PROJECTED DEBT BALANCES AS OF JUNE 30, 1994
<PAGE> 31
PRIVILEGED AND CONFIDENTIAL, PREPARED AT THE REQUEST OF, AND UNDER THE
DIRECTION OF MONIGHAM MILLER SCHWARTZ AND COHN
<TABLE>
<CAPTION>
RAMCO-GERSHENSON,INC. 23-JUN-94
LOANS OUTSTANDING ON REFIT PROPERTIES
FILENAME:LINSHARE 2
INTEREST
TYPE LENDER RATE
- ------------------------------------------------------------------------------------------------------
<S> <C> <C>
FLOATING RATE OR PREPAYABLE SHORT-TERM LOANS
TEL-TWELVE HALL FIRST BANK OF BOSTON PRIME + 1
TEL-TWELVE HALL TERM HUNTINGTON BANK PRIME + 1
TEL-TWELVE HALL EQUIP HUNTINGTON BANK PRIME + 1
RAMCO FRASER FIRST BANK OF BOSTON PRIME + 1
RAMCO FRASER EQUIP HUNTINGTON BANK PRIME + 1
RAMCO LAPEER FIRST NBO BANK, N.A. PRIME + .5
RAMCO SOUTH NAPLES FIRST BANK OF BOSTON PRIME + 1
SOUTHFIELD PLAZA EQUIP HUNTINGTON BANK PRIME + 1
RAMCO SINGSER FIRST BANK ONE TREAS + 425
S-12 ASSOCIATES FIRST KEY BANK OF NEW YORK 9.375%
WEST ALLIS SHOPPING CENTER FIRST BANK OF BOSTON PRIME + 1
FORD SHELDON FIRST HUNTINGTON BANK PRIME + 1
FORD SHELDON FIRST AETNA LIFE 9.925%
FERNDALE PLAZA FIRST SUN LIFE 9.75%
104W STERLING FIRST NORTHWESTERN MUTUAL LIFE 10.125%
104W STERLING EQUIP HUNTINGTON BANK PRIME + 1
RAMCO OAKBROOK SECOND BANK OF BOSTON PRIME + 1
STERLING MALL FIRST MUTUAL BENEFIT 11.50%
STERLING MALL SECOND FIRST OF AMERICA PRIME + 1
W & G REALTY FIRST AETNA LIFE 9.925%
WEST OAKS I EQUIP HUNTINGTON BANK PRIME + 1
WEST OAKS II EQUIP HUNTINGTON BANK PRIME + 1
RAMCO JACKSON CONSTRUCTION NBO BANK, N.A. PRIME + .75
RAMCO JACKSON TERM HUNTINGTON BANK PRIME + 1
RAMCO LANSING CONSTRUCTION BANK OF BOSTON PRIME + 1
LEWIS ALEXIS GROUP FIRST NATIONWIDE LIFE 9.50%
NORTH TOWNE OFFICEWAX - CONSTRUCTION MICHIGAN NATIONAL BANK PRIME + .75
LA II GROUP
TOTAL SHORT - TERM LOANS
- --------------------------------
SHORT - TERM ADVANTAGEOUS RATE LOANS
- --------------------------------
ROSEVILLE PLAZA FIRST BARCLAY'S BANK LIBOR + 125
SOUTHFIELD PLAZA FIRST BARCLAY'S BANK LIBOR + 125
</TABLE>
<TABLE>
<CAPTION>
PROJECTED TO BE
BALANCE RAMCO THIRD DEBT REFINANCED
AT DEBT TO PARTY LEFT AT REIT
TYPE 6-30-94 EQUITY SWAP DEBT IN PLACE INCEPTION
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
FLOATING RATE OR PREPAYABLE SHORT-TERM LOANS
TEL-TWELVE MALL 31,115,000 31,115,000 31,115,000
TEL-TWELVE MALL 112,497 112,497 112,497
TEL-TWELVE MALL 16,579 16,579 16,579
0 0
RAMCO FRASER 2,276,089 2,276,089 2,276,089
RAMCO FRASER 28,234 28,234 28,234
0 0
RAMCO LAPEER 9,289,923 9,289,923 9,289,923
0 0
RAMCO SOUTH NAPLES 1,096,692 1,096,692 1,096,692
0 0
SOUTHFIELD PLAZA 22,950 22,950 22,950
0 0
RAMCO SINGSER 7,333,933 7,333,933 7,333,933
0 0
S-12 ASSOCIATES 2,086,821 2,086,821 2,086,821
0 0
WEST ALLIS SHOPPING CENTER 14,861,461 14,861,461 14,861,461
0 0
FORD SHELDON 576,716 576,716 576,716
FORD SHELDON 5,875,075 5,875,075 5,875,075
0 0
FERNDALE PLAZA 1,793,679 1,793,679 1,793,679
0 0
104W STERLING 1,684,800 1,684,800 1,684,800
104W STERLING 20,530 20,530 20,530
0 0
RAMCO OAKBROOK 1,517,300 1,517,300 1,517,300
0 0
STERLING MALL 5,899,747 5,899,747 5,899,747
STERLING MALL 1,628,437 1,628,437 1,628,437
0 0
W & G REALTY 4,381,413 4,381,413 4,381,413
0 0
WEST OAKS I 21,781 21,781 21,781
0 0
WEST OAKS II 30,728 30,728 30,728
0 0
RAMCO JACKSON 24,691,163 24,691,163 24,691,163
RAMCO JACKSON 63,742 63,742 63,742
0 0
RAMCO LANSING 4,280,720 4,280,720 4,280,720
0 0
LEWIS ALEXIS GROUP 13,000,000 13,000,000 13,000,000
0 0
NORTH TOWNE OFFICEMAX - 1,620,000 1,620,000 1,620,000
LA II GROUP
------------------------------------------------------------
TOTAL SHORT - TERM LOANS 135,326,010 0 135,326,010 0 135,326,010
- --------------------------------
SHORT - TERM ADVANTAGEOUS RATE LOANS
- --------------------------------
ROSEVILLE PLAZA 9,903,108 9,903,108 9,903,108 0
SOUTHFIELD PLAZA 8,821,633 8,821,633 8,821,633 0
</TABLE>
*REPRESENTS LOAN PREPAYABLE WITH PENALTY.
<PAGE> 32
PRIVILEGED AND CONFIDENTIAL, PREPARED AT THE REQUEST OF, AND UNDER THE
DIRECTION OF MONIGHAM MILLER SCHWARTZ AND COHN
<TABLE>
<CAPTION>
RAMCO-GERSHENSON,INC. 23-JUN-94
LOANS OUTSTANDING ON REFIT PROPERTIES
FILENAME:LINSHARE 2
PROJECTED
BALANCE RAMCO
INTEREST AT DEBT TO
TYPE LENDER RATE 6-30-94 EQUITY SWAP
- -------------------------------------------------------------------------------------------------------------------------------
--------------------------
<S> <C> <C>
TOTAL SHORT - TERM ADVANTAGEOUS RATE LOANS 18,724,741 0
- ------------------------------------------
LONG-TERM ADVANTAGEOUS RATE LOANS
- ------------------------------------------
RAMCO OAKBROOK FIRST CAPITOL HOLDING .75 OF SALOMON 30 YR UTILI 7,000,000
WEST OAKS I FIRST UNION MUTUAL 10.125% 4,413,627
--------------------------
TOTAL LONG-TERM ADVANTAGEOUS RATE LOANS 11,413,627 0
- ------------------------------------------
LONG-TERM LOANS LEFT IN PLACE
- ------------------------------------------
KENTWOOD TOWNE CENTER FIRST NATIONWIDE LIFE 9.375% 11,265,548
WEST OAKS II FIRST TRAVELERS 10% 9,549,050
SPRING MEADOWS FIRST TRAVELERS 9.50% 12,000,540
SPRING MEADOWS FIRST FDB ANNUITY 8.75% 1,970,635
--------------------------
TOTAL LONG-TERM LOANS LEFT IN PLACE 34,785,773 0
- ------------------------------------------
RAMCO LOAN PAYOFFS
- ------------------------------------------
RAMCO FRASER OTHER RAMCO VENTURES 64,271
RAMCO SOUTH NAPLES OTHER RAMCO VENTURES 1,601,461 (1,601,461)
RAMCO SINGER OTHER RAMCO VENTURES 72,864 (72,864)
WEST ALLIS SHOPPING CENTER OTHER RAMCO VENTURES 1,035,392
FERNDALE PLAZA LAND CONT 21,875
FERNDALE PLAZA OTHER RAMCO VENTURES 193,635 (193,635)
KENTWOOD TOWNE CENTER OTHER RAMCO VENTURES 142,010 (142,010)
RAMCO OAKBROOK OTHER RAMCO VENTURES 1,618,759
STERLING MALL OTHER RAMCO STERLING HEIGHTS 420,000
STERLING MALL OTHER 104W STERLING 177,200
STERLING MALL OTHER RAMCO VENTURES 681,125 (681,125)
W & G REALTY OTHER RAMCO VENTURES (344,114) 344,114
SPRING MEADOWS OTHER RAMCO VENTURES 79,351
RAMCO JACKSON OTHER RAMCO VENTURES 2,458,166 (2,458,166)
RAMCO JACKSON OTHER RAMCO-GERSHENSON, INC.
RAMCO LANSING OTHER RAMCO VENTURES 2,697,079 (494,852)
--------------------------
TOTAL RAMCO LOAN PAYOFFS 10,919,174 (5,300,099)
--------------------------
TOTAL LOANS OUTSTANDING 211,169,325 (5,300,099)
==========================
LESS: REIT DEBT PAYDOWN (75,000,000-2,000,000 TRANSACTION COSTS = 73,000,000)
DEBT REMAINING IN PLACE
132,869,226
</TABLE>
<TABLE>
<CAPTION>
TO BE
THIRD DEBT REFINANCED
PARTY LEFT AT REIT
DEBT IN PLACE INCEPTION
- ---------------------------------------------------------------------------------------------
----------------------------------------
<S> <C> <C> <C>
TOTAL SHORT - TERM ADVANTAGEOUS RATE LOANS 18,724,741 18,724,741 0
- ------------------------------------------
LONG-TERM ADVANTAGEOUS RATE LOANS
- ------------------------------------------
RAMCO OAKBROOK 7,000,000 7,000,000 0
WEST OAKS I 4,413,627 4,413,627 0
----------------------------------------
TOTAL LONG-TERM ADVANTAGEOUS RATE LOANS 11,413,627 11,413,627 0
- ------------------------------------------ 0 0
LONG-TERM LOANS LEFT IN PLACE 0 0
- ------------------------------------------ 0 0
KENTWOOD TOWNE CENTER 11,265,548 11,265,548 0
WEST OAKS II 9,549,050 9,549,050 0
SPRING MEADOWS 12,000,540 12,000,540 0
SPRING MEADOWS 1,970,635 1,970,635 0
----------------------------------------
TOTAL LONG-TERM LOANS LEFT IN PLACE 34,785,773 34,785,773 0
- ------------------------------------------
RAMCO LOAN PAYOFFS
- ------------------------------------------
RAMCO FRASER 64,271 64,271
0 0
RAMCO SOUTH NAPLES 0 0
0 0
RAMCO SINGER 0 0
0 0
WEST ALLIS SHOPPING CENTER 1,035,392 1,035,392
0 0
FERNDALE PLAZA 21,875 21,875
FERNDALE PLAZA 0 0
0 0
KENTWOOD TOWNE CENTER 0 0
0 0
RAMCO OAKBROOK 1,618,759 1,618,759
0 0
STERLING HALL 420,000 420,000
STERLING HALL 177,200 177,200
STERLING HALL 0 0
0 0
W & S REALTY 0 0
SPRING MEADOWS 79,351 79,351
RAMCO JACKSON 0 0
RAMCO JACKSON 0 0
RAMCO LANSING 2,202,227 2,202,227
----------------------------------------
TOTAL RAMCO LOAN PAYOFFS 5,619,075 0 5,619,075
----------------------------------------
TOTAL LOANS OUTSTANDING 205,869,226 64,924,141 140,945,085
========================================
LESS: REIT DEBT PAYDOWN (75,000,000-2,000,000
TRANSACTION COSTS = 73,000,000) (73,000,000)
-------------------------
DEBT REMAINING IN PLACE 64,924,141 67,945,085 132,869,226
=========================
</TABLE>
<PAGE> 33
ATTACHMENT TO LETTER OF INTENT
SCHEDULE 3
THIRD-PARTY SHOPPING CENTER MANAGEMENT CONTRACTS
RAMCO OFFICE ONE DEVELOPMENT COMPANY
SUMMIT NORTH LIMITED PARTNERSHIP
SUMMIT PLACE AND SUMMIT CROSSING
KM BLUE ASH DEVELOPMENT COMPANY
LIVONIA TOWNE SQUARE
KM SAGINAW DEVELOPMENT COMPANY
RAMCO CLINTON DEVELOPMENT COMPANY
SANDUSKY CENTER PARTNERS
SOUTHFIELD PROPERTIES - GGJ ASSOCIATES
SOUTHFIELD PROPERTIES - CEDAR/JOLLY
MAPLE & LIVERNOIS PLAZA
G & R DEVELOPMENT
G & S REALTY COMPANY
C G S ASSOCIATES - LIVONIA
SOUTHFIELD PROPERTIES - LANSING MART
GERSHENSON-WITTBOLD LOUISVILLE
MELVINDALE PLAZA
MICHIGAN MART ASSOCIATES
GERSHENSON-WITTBOLD MT. CLEMENS
NINE MILE & HARPER
SOUTHFIELD PROPERTIES - PLYMOUTH/SOUTHFIELD
KMART TEN MILE & DEQUINDRE
SOUTHFIELD PROPERTIES - VAN BORN
SOUTHFIELD PROPERTIES - YPSILANTI
SOUTHFIELD PROPERTIES - DAYTON
SOUTHFIELD PROPERTIES - SOUTHGATE
SOUTHFIELD PROPERTIES - 13 MILE & SCHOENHERR
SOUTHFIELD PROPERTIES - WESTLAND
OTHER MANAGEMENT/ACCOUNTING SERVICE CONTRACTS
PONMALREST ASSOCIATES, INC. BURGER KING FRANCHISE
R G PARTNERSHIP BURGER KING PROPERTY LANDLORD
RAMCO VIDEO - TEL TWELVE MALL VIDEO ARCADE
MAIN STREET VIDEO VIDEO ARCADE
SUMMIT VIDEO VIDEO ARCADE
23
<PAGE> 34
ATTACHMENT TO LETTER OF INTENT
SCHEDULE 3
ACCOUNTING SERVICES
RAMCO SUMMIT NORTH DEVELOPMENT COMPANY
RAMCO LEWIS ALEXIS ASSOCIATES
FERNDALE REDEVELOPMENT COMPANY
RAMCO L & W PARTNERS
RAMCO GP
FERNDALE/LIVONIA LIMITED PARTNERSHIP
LIVONIA REDEVELOPMENT COMPANY
RAMCO LAPEER, INC.
RAMCO KENTWOOD ASSOCIATES
RAMCO OAKBROOK SQUARE, INC.
RAMCO STERLING HEIGHTS
RAMCO JACKSON, INC.
RAMCO CONSUMER MALL ASSOCIATES
RAMCO TROY ASSOCIATES LIMITED PARTNERSHIP
RAMCO NOVI DEVELOPMENT COMPANY
RAMCO SPRING MEADOWS ASSOCIATES LIMITED PARTNERSHIP
PONMALREST ASSOCIATES, INC.
RAMCO ALLIS DEVELOPMENT COMPANY
R G PARTNERSHIP
RAMCO VIDEO - TEL TWELVE MALL
MAIN STREET VIDEO
SUMMIT VIDEO
RAMCO SANDUSKY ASSOCIATES
RAMCO SANDUSKY, INC.
R G TEL TWELVE COMPANY
SCHUST & BAY DEVELOPMENT COMPANY
RAMCO VENTURES
FIVE PARTNERS
24
<PAGE> 35
ATTACHMENT TO LETTER OF INTENT
SCHEDULE 4
OUTLOTS NOT USEFUL FOR DEVELOPMENT OR EXPANSION
OF RETAIL SHOPPING CENTERS, OR OTHERWISE EXCLUDED
<TABLE>
<CAPTION>
PARCEL SIZE
ACRES
<S> <C> <C>
STERLING HEIGHTS, MICHIGAN (1) 5.84
WATERFORD, MICHIGAN (2) 5.0,1.15,2.6,1.2
SAGINAW, MICHIGAN (3) 3.77,25.54
SANDUSKY, OHIO (4) 1.1,1.6,.96,8.63,6.92
TROY, OHIO (5) .92, 18.745
COMMERCE TOWNSHIP (COMMERCE (6) 1.55, 24.55
& UNION LAKE)
SPRING MEADOWS PLACE (7) 1.019
(SPRINGFIELD TOWNSHIP, OHIO)
</TABLE>
<TABLE>
<S> <C>
(1) SALE OF PROPERTY TO BE COMPLETED BEFORE REIT FORMATION
(2) PART OF SUMMIT PLACE COMPLEX
(3) 3.77 ACRES ADJACENT TO SHOPPING CENTER NOT INCLUDED IN REIT, 25.54 ACRES ZONED MULTIPLE BEHIND
SHOPPING CENTER.
(4) ADJACENT TO SHOPPING CENTER NOT INCLUDED IN REIT.
(5) LAND IN PROXIMITY OF SHOPPING CENTER CANNOT BE DEVELOPED AS EXPANSION TO SHOPPING CENTER.
(6) LAND CURRENTLY ZONED MULTI-FAMILY, BEING USED FOR SEPTIC FIELD ADJACENT TO SHOPPING CENTER NOT
INCLUDED IN REIT.
(7) PROPERTY UNDER CONTRACT TO BE SOLD BEFORE REIT FORMATION.
</TABLE>
25
<PAGE> 36
Schedule 5
(a) The dollar value of the Ramco Contribution Assets shall be determined
in accordance with the following formula:
ANOI
[RNOI - (RPI + ( ---- x RGA ))] x.85
TNOI
- ------------------------------------ - $75,000,000
.09
Where:
RNOI = The sum of (i) projected net operating income from the Ramco
Properties (exclusive of revenues attributable to the
Tel-Twelve Lease) for the 12 month period commencing October
1, 1994 based on Qualifying Leases in place as of such date
and (ii) MCF.
RPI = Projected interest on the Ramco Properties for the 12 month
period commencing on the Closing Date based on debt financing
in place immediately following the closing.
CNOI = Projected net operating income from the Company Properties for
the 12 month period commencing October 1, 1994 based on leases
in place as of such date.
TNOI = The sum of ANOI and CNOI.
RGA = The 12 month projected general and administrative expenses of
the Company.
MCF = Projected net cash flow from the management corporation for
the 12 month period commencing October 1, 1994 assuming that
the Transaction closed on that date and all management
contracts relating to the Ramco Properties were canceled.
ANOI = RNOI increased by (i) projected net operating income from the
Tel-Twelve Lease for the 12 month period commencing October 1,
1994 and (ii) the difference between $2,824,000 and RNOI from
the Jackson Property as of October 1, 1994.
26
<PAGE> 37
OPV = $17.36
Unless the Company otherwise agrees, a lease will be
considered a "Qualifying Lease" if it satisfies all of the following
conditions: it is duly executed and delivered by all necessary parties, it
initially had a term of at least 3 years, it requires the payment of a market
rent, the tenant under the lease is a person who normally occupies space in a
retail shopping center, the tenant is open for business and paying rent or, if
it is a new lease, the tenant is scheduled to be open for business and paying
rent within 3 months after the lease is signed (except if the conditions for
occupancy require that more than 3 months elapse before the tenant is scheduled
to open for business and begin paying rent, this condition will be satisfied if
the tenant under such lease provides the Company with an estoppel letter
indicating that the lease is in full force and effect and the tenant is
scheduled to be open for business and paying rent within 5 months after the
lease is signed), the tenant's business, design of improvements and type of
establishment is consistent with the leasing restrictions included in existing
reciprocal easement agreements, development agreements and/or anchor leases, it
satisfies all REIT eligibility requirements, and it requires the tenant to pay
for an appropriate share of operating expenses at the property.
27
<PAGE> 38
SCHEDULE 5.1
ILLUSTRATION OF SCHEDULE 5 FORMULA
<TABLE>
<CAPTION>
Base Case
- ---------
<S> <C> <C> <C> <C>
Dollar Value of RPS Assets $123,657,000 67.5%
Gershenson NOI $ 27,607,000
Add: Third-Party Management 231,000
Less: Interest on Existing Debt at 8.79% (4,046,000)
Less: Interest on $92.5 Million of Refinanced Debt at 8.45% (7,800,000)
Less: G&A Allocated to Gershenson (1,753,800)
-------------
Gershenson FFO 14,238,200
Payout Ratio 85%
-------------
12,102,470
Dividend Yield 9.0%
-------------
134,471,890
Less: RPS Cash Contribution (75,000,000)
-------------
Dollar Value of Gershenson Assets 59,471,890 32.5%
-----------------------
Combined Value 183,128,890 100.0%
RPS Shares Outstanding 5,698,480 67.5%
Gershenson Shares/OP Units 2,740,640 32.5%
------------
Total Shares/OP Units to be Outstanding 8,439,120
Per Share Value $17.36
</TABLE>
28
<PAGE> 39
Schedule 6
Ramco will be entitled to receive additional OP Units, up to
an aggregate maximum equal to the difference between (A) the number of OP Units
Ramco would have received at the closing assuming rent projected 12 month net
operating income from the Jackson Property on October 1, 1994 equalled at least
$2,824,000 and (B) the number of OP Units issued to Ramco at the closing of the
Transaction as a result of the actual projected 12 month net operating income
from the Jackson Property as of October 1, 1994, determined in accordance with
the following formula:
OP Units = (NOI / CR) - (AA + I)
---------------------
OPV
Where:
NOI = The annualized stabilized net operating income of the Jackson Property
from all sources other than non-qualifying leases on the date which is one year
from the Closing Date minus the sum of (i) the projected 12 month net operating
income from the Jackson Property from all sources as of October 1, 1994, (ii)
any increased rent attributable to automatic fixed minimum rent escalations
attributable to leases in place as of October 1, 1994, (iii) percentage rents
in excess of the percentage rents taken into consideration in computing
projected 12 month net operating income from the Jackson Property as of October
1, 1994 with respect to leases in place as of October 1, 1994; provided,
however, with respect to any leases entered into on or after October 1, 1994,
annualized stabilized net operating income shall not include the amount by
which tenant improvements and tenant allowances in such lease (calculated by
amortizing such amounts over the initial term of the lease) exceed the product
of (a) the average thereof for such property and type of tenant and (b) the
number of square feet covered by such lease.
CR = the applicable capitalization rate of .106.
AA = the sum of all amounts advanced by the Operating Partnership from and
after the closing of the Transaction through and including the date which is
one year from the Closing Date for capital expenditures relating to new
tenants, tenant improvements, tenant allowances and leasing costs at the
Jackson Property.
29
<PAGE> 40
I = interest on AA (calculated from the date such amounts were advanced) at an
annual rate equal to the greater of (i) 10% per annum or (ii) a floating rate
per annum equal to the prime rate of Bank of Boston plus 2%.
OPV = $17.36
A lease will be considered "nonqualifying" unless it satisfies
all of the following conditions: it is executed and delivered within one year
from the Closing Date, it has a term of at least 3 years, it requires the
payment of a market rent, the tenant under the lease is a person who normally
occupies space in a retail shopping center and is open for business and paying
rent, the tenant's business, design of improvements and type of establishment
is consistent with the leasing restrictions included in existing reciprocal
easement agreements, development agreements and/or anchor leases, it satisfies
all REIT eligibility requirements, and it requires the tenant to pay for an
appropriate share of operating expenses at the property.
30
<PAGE> 41
Schedule 6.1
Ramco will be entitled to receive additional OP Units, up to
an aggregate maximum equal to the number of OP Units Ramco would have received
at the closing assuming rent from the Tel-Twelve Property on October 1, 1994
had been increased by $510,000, determined in accordance with the following
formula:
OP Units = (NOI / CR) - (AA + I)
---------------------
OPV
Where:
NOI = The annualized stabilized net operating income attributable to the
Tel-Twelve Lease (after taking into account all incremental increases in
expenses at the Tel-Twelve Property attributable to such lease) on the date the
tenant under such lease begins paying rent.
CR = the applicable capitalization rate of .106.
AA = the sum of all amounts advanced or incurred by the Operating Partnership
from and after the closing of the Transaction through and including the date on
which the tenant under the Tel-Twelve Lease begins paying rent for capital
expenditures, tenant improvements, tenant allowances and leasing costs relating
to the Tel-Twelve Lease.
I = interest on AA (calculated from the date such amounts were advanced) at an
annual rate equal to the greater of (i) 10% per annum or (ii) a floating rate
per annum equal to the prime rate of Bank of Boston plus 2%.
OPV = $17.36
Ramco will not be entitled to receive additional OP Units
pursuant to this Schedule 6.1 unless the tenant under the Tel-Twelve Lease is
open for business and begins paying rent within one year from the Closing Date.
31
<PAGE> 42
ATTACHMENT TO LETTER OF INTENT
SCHEDULE 7
LISTING OF COMPANY OWNED SHOPPING CENTERS TO BE CONTRIBUTED
Sunshine Plaza Shopping Center
Crofton Shopping Center
Trinity Corners Shopping Center
Commack Property
Lantana Shopping Center
9 North Wabash
Chester Plaza Shops
32
<PAGE> 43
ATTACHMENT TO LETTER OF INTENT
SCHEDULE 8
RAMCO EXCLUDED PROPERTIES AND BUSINESSES
<TABLE>
<S> <C>
RIVER'S EDGE OFFICE BUILDING SOUTHFIELD, MICHIGAN
SUMMIT NORTH WATERFORD, MICHIGAN
SUMMIT PLACE AND SUMMIT CROSSING WATERFORD, MICHIGAN
BLUE ASH COMMONS CINCINNATI, OHIO
LIVONIA TOWNE SQUARE LIVONIA, MICHIGAN
RAY TOWNE PLAZA SAGINAW, MICHIGAN
PARK PLACE SHOPPING CENTER SANDUSKY, OHIO
</TABLE>
FOLLOWING IS A LIST OF BUSINESSES IN WHICH THE RAMCO PRINCIPALS ARE INVOLVED
WHICH ARE NOT INCLUDED AS PART OF THE TRANSACTION AND AR NOT A PART OF EXCLUDED
PROPERTIES. THIS FOLLOWING LIST IS FOR INFORMATIONAL PURPOSES ONLY.
<TABLE>
<S> <C>
PONMALREST ASSOCIATES, INC. BURGER KING FRANCHISE
K G PARTNERSHIP BURGER KING PROPERTY LANDLORD
</TABLE>
VIDEO ARCADE BUSINESSES AS OF MAY 12, 1994:
<TABLE>
<S> <C>
RAMCO VIDEO - TEL TWELVE MALL VIDEO ARCADE
MAIN STREET VIDEO VIDEO ARCADE
SUMMIT VIDEO VIDEO ARCADE
</TABLE>
33
<PAGE> 44
RAMCO-GERSHENSON PROPERTIES TRUST
AMENDED AND RESTATED
1989 EMPLOYEES' STOCK OPTION PLAN
1. PURPOSES
The purposes of the Ramco-Gershenson Properties Trust Amended
and Restated 1989 Employees' Stock Option Plan (the "Plan") are (i) to provide
incentives to those key employees of Ramco-Gershenson Properties Trust (the
"Trust") who are in a position to contribute to the long-term success of the
Trust, (ii) to assist the Trust in attracting and retaining qualified
executives, (iii) to provide participants with an opportunity to share in the
growth in value of the Trust and (iv) to align participants' interests with
those of the Trust's shareholders. The Plan is being amended and restated in
connection with the Ramco Transaction. Certain capitalized terms not otherwise
defined in this Plan shall have the meanings set forth in Section 19.
2. SHARES SUBJECT TO THE PLAN
The total number of shares for which options may be granted
under the Plan shall not exceed, in the aggregate, 387,500 shares of beneficial
interest in the Trust, par value $.10 per share (the "Shares"), subject,
however, to adjustment in accordance with the provisions of Section 13 hereof.
Such Shares may be authorized and unissued Shares, or Shares previously issued
and reacquired by the Trust. Except as provided in Section 5, any Shares which
were the subject of unexercised portions of any terminated or expired options
shall not be subject to further options under the Plan.
3. ADMINISTRATION
The Plan shall be administered by the Compensation Committee
of the Board of Trustees of the Trust (the "Committee"). No member of the
Committee shall be eligible to participate in the Plan. Each member of the
Committee shall be a Disinterested Person and an "outside director" within the
meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended (the
"Code"), and the regulations promulgated thereunder, to the extent applicable.
Subject to the terms, conditions and limitations of the Plan,
the Committee shall have full and complete discretion under the Plan, including
the authority (a) to select the employees to whom and the time or times at which
options to purchase Shares shall be granted, (b) to determine the number of
Shares to be subject to each option (and the option price, where appropriate),
and (c) to take any other steps in connection with the Plan or the options as it
may deem necessary or advisable. The Committee shall have full power and
authority to administer and interpret the Plan and to adopt or amend such rules,
regulations, agreements and instruments for implementing the Plan and for
conduct of its business as it deems necessary or advisable. The Committee's
interpretations of the Plan and all determinations made by the Committee
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<PAGE> 45
pursuant to the powers vested in it hereunder shall be conclusive and binding
on all persons having any interest in the Plan or in any awards granted
hereunder.
Subject to the terms, conditions and limitations of the Plan,
the Committee may amend or modify the terms of any outstanding option
prospectively or retroactively and may cause outstanding options to be canceled
and grant new options in place thereof; provided, however, that such amendment,
modification or cancellation shall not impair the rights of any option holder
without the holder's consent; and provided, further, that options with respect
to no more than 387,500 Shares shall be granted to any one individual during
any calendar year.
4. ELIGIBILITY
Officers and other employees of the Trust shall be eligible to
participate in the Plan. Members of the Board of Trustees who are not also
officers or employees of the Trust shall not be eligible to participate in the
Plan.
5. GRANT OF OPTIONS
Upon and effective as of the Effective Date, the Trust shall
enter into a new option agreement with each of the individuals set forth on
Exhibit A attached hereto who were granted options in the amounts set forth on
Exhibit A prior to the Effective Date (an "Optionee"), which agreement will
supersede any preexisting option agreements with such Optionee and will reflect
the amended terms of such Optionee's options under the Plan. All such options
shall be subject to the terms and conditions set forth in this Plan and to such
other terms as the Committee deems appropriate. Options granted under the Plan
shall not be intended to qualify as incentive stock options under Section 422A
of the Code.
6. EXERCISE PRICE
The exercise price of an option shall be equal to $5.75 per
share, subject to adjustment in accordance with the provisions of Section 13
hereof.
7. TERM
Unless the agreement covering an option (the "Option
Agreement") provides otherwise, options granted hereunder shall expire not
later than ______________, 200_* (the "Expiration Date").
8. EXERCISE OF OPTIONS
(a) Unless the Option Agreement provides otherwise,
options granted under Section 5 hereof shall be fully exercisable on the
Effective Date; provided that, any Options
__________________________________
* Not earlier than December 6, 2004 or later than 10 years from
the Closing of the Ramco Transaction.
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<PAGE> 46
granted to an Optionee who is subject to Section 16(b) of the Securities
Exchange Act of 1934, as amended, shall not be exercisable during the six-month
period following the Effective Date.
(b) Options shall be exercisable during an Optionee's
lifetime by the Optionee, or if the Optionee has become disabled, by his legal
representative.
(c) Options shall be exercisable for cash, or in lieu of,
or in addition to cash, by the delivery of Shares (at their fair market value
on the date of exercise) previously owned by the Optionee or to be acquired by
the Optionee upon the exercise of the option.
(d) No fractional Shares, or cash in lieu thereof, shall
be issued under any option granted hereunder.
9. TERMINATION OF EMPLOYMENT
(a) Except as set forth in clause (b), if an Optionee's
Termination of Employment is for any reason other than death, disability or
Retirement, the Optionee shall have the right to exercise the option, not later
than the earlier of (i) one year after the date of such termination and (ii)
the Expiration Date.
(b) Notwithstanding the provisions of clause (a), if an
Optionee's Termination of Employment occurs but the Optionee continues after
such Termination of Employment to serve the Trust in another capacity, as
either a Trustee or Employee, the Optionee shall have the right to exercise his
Options during the period in which he remains a Trustee or Employee (subject to
extension as set forth in the following sentence and in Section 10). On the
date the Optionee ceases to be a Trustee, the Optionee shall have the right to
exercise the Option, not later than the earlier of (i) one year from the date
on which the Optionee ceases to be a Trustee of the Trust (except as such time
may be extended in Section 10(c)) and (ii) the Expiration Date.
10. DEATH; DISABILITY; RETIREMENT
(a) If an Optionee's Termination of Employment is by
reason of death, all of the Optionee's options shall immediately become
exercisable in full and the personal representative of the Optionee, or the
person or persons to whom the option shall have been transferred by will or by
the laws of descent and distribution, shall have the right to exercise such
options not later than the earlier of (i) one year from the date of the
Optionee's death and (ii) the Expiration Date.
(b) If an Optionee's Termination of Employment is by
reason of disability, all of the disabled Optionee's options (which have been
held for a period of at least one year as of the date of such total disability
shall immediately become exercisable in full) and the disabled Optionee, or his
legal representative, shall have the right to exercise such options not later
than the earlier of (i) one year from the date of such disability and (ii) the
Expiration Date.
(c) If an Optionee's Termination of Employment is due to
Retirement or an Optionee ceases to be a Trustee of the Trust due to
Retirement, all of the Optionee's options shall immediately become exercisable
in full, and the Optionee shall have the right to exercise such
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<PAGE> 47
options not later than the earlier of (i) five years from the date of
Retirement and (ii) the Expiration Date.
11. TRANSFERABILITY OF OPTIONS
(a) An Optionee's rights and interests under the Plan
(including the right to exercise unexercised options) may not be assigned or
transferred, except in the case of an Optionee's death to the person or persons
to whom the option shall have been transferred by will or the laws of descent
and distribution or pursuant to a qualified domestic relations order as defined
in the Code or Title I of the Employer Retirement Income Security Act of 1984,
as amended, or the rules thereunder.
(b) Notwithstanding the foregoing, the Committee may
provide in an Option Agreement (or another writing) that the Optionee may
transfer, without consideration for the transfer, all or part of the Optionee's
options to members of his immediate family (i.e., children, grandchildren or
spouse), to trusts for the benefit of such immediate family members and to
partnerships in which such family members are the only parties.
12. AGREEMENTS WITH OPTIONEES
Each grant made under this Plan may be evidenced by an Option
Agreement containing such terms and conditions as the Committee shall approve.
Each such agreement shall provide that, as a condition to the grant of the
options evidenced thereby, the Optionee agrees that the Trust may arrange to
deduct from any payments due to the Optionee from the Trust, the aggregate
amount of federal, state or local taxes of any kind required by law to be
withheld with respect to the exercise of such options, or if no such payments
are due or to become due to the Optionee, that, if required by the Trust, the
Optionee shall pay to the Trust, or make arrangements satisfactory to the Trust
regarding the payment to it of, the aggregate amount of such taxes.
13. ADJUSTMENTS
(a) The total number of Shares for which options may be
granted under the Plan and option rights (both as to the number of Shares and
the option price) shall be appropriately adjusted for any increase or decrease
in the number of outstanding Shares resulting from payment of a stock dividend
on the Shares, a stock dividend that constitutes a spin-off, a subdivision or
combination of Shares, or a reclassification of the Shares, and (in accordance
with the provisions contained in the next paragraph) in the event of a
recapitalization of the Trust or a consolidation or merger in which the Trust
shall be the surviving entity. If in connection with the Ramco Transaction the
Trust sells or disposes of the Mortgage Loans listed on Schedule 1
(collectively, the "Transferred Assets") and the proceeds of such sales or
other dispositions are not included in a spin-off entity, the exercise price of
the options shall be reduced by multiplying the existing exercise price by a
fraction, the numerator of which is the net value ascribed to the Transferred
Assets by Dean Witter Reynolds, Inc. (the "Transferred Asset Value") and the
denominator of which is the sum of (i) the Transferred Asset Value and (ii) the
fair market value of the Trust's assets that will remain in the Trust (or will
be contributed to a subsidiary partnership)(as determined by Dean Witter
Reynolds, Inc.).
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<PAGE> 48
(b) In its absolute discretion, and on such terms and
conditions as it deems appropriate, the Committee may provide by the terms of
any option that such option cannot be exercised after the merger or
consolidation of the Trust into another entity, the exchange of all or
substantially all of the assets of the Trust for the securities of another
entity, the acquisition by another entity of 80% or more of the Trust's then
outstanding Shares or the liquidation or dissolution of the Trust, and if the
Committee so provides, it may, in its absolute discretion and on such terms and
conditions as it deems appropriate, also provide, either by the terms of such
option or by a resolution adopted prior to the occurrence of such merger,
consolidation, exchange, acquisition, liquidation or dissolution, that, for
some period of time prior to such event, such option shall be exercisable as to
all Shares subject thereto, notwithstanding anything to the contrary in Section
8 and/or in any installment provisions of such option.
14. RIGHTS AS A SHAREHOLDER
An Optionee or a transferee of an option shall have no rights
as a shareholder with respect to any Share covered by an option until he shall
have become the holder of record of such Share, and no adjustment shall be made
for dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights in respect of such share for which
the record date is prior to the date on which he shall become the holder of
record thereof.
15. AMENDMENT AND TERMINATION
The Board of Trustees of the Trust or the Committee, without
the consent of the participants, may at any time alter or discontinue the Plan,
provided that such action will not materially affect options theretofore
granted and provided that no such action of the Board of Trustees of the Trust
or the Committee may, without the approval of Shareholders, alter the
provisions of the Plan so as to (a) increase the total number of Shares which
may be purchased pursuant to options granted under the Plan (except to reflect
stock dividends, stock splits or similar recapitalizations), (b) change the
manner of determining the option price, (c) change the requirements as to
employees eligible to participate in the Plan, (d) extend the option period or
(e) modify the Plan in any way that requires shareholder approval in order for
options granted thereafter to qualify as performance-related compensation for
purposes of Section 162(m) of the Code and the regulations promulgated
thereunder, to the extent applicable.
16. INVESTMENT PURPOSE
No Shares shall be issued or transferred upon the exercise of
any option hereunder unless and until all legal requirements applicable to the
issuance or transfer of such Shares have been complied with to the satisfaction
of the Committee. The Committee shall have the right to condition the issuance
of Shares made to any Optionee hereunder on such Optionee's undertaking in
writing to comply with such restrictions on his subsequent disposition of such
Shares as the Committee shall deem necessary or advisable as a result of any
applicable law, regulation or official interpretation thereof, and certificates
representing such Shares may be legended to reflect any such restrictions.
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<PAGE> 49
17. RIGHT TO TERMINATE EMPLOYMENT
Nothing contained herein or in any Option Agreement shall
restrict the right of the Trust to terminate the employment of any Optionee at
any time, with or without cause.
18. DETERMINATION OF FAIR MARKET VALUE
The "fair market value" of the Shares as of a particular date,
shall be deemed to be (a) the closing sales price per Share if the Shares are
listed on a stock exchange or (b) if the Shares are not listed, the mean
between the closing or average bid and asked prices per Share on the
over-the-counter market.
19. CERTAIN DEFINITIONS
"Disinterested Person" means an Independent Trustee who
qualifies as such under Rule 16b-3(C)(2)(i) promulgated under the Securities
Act of 1933, as amended, or any successor definition under the Act.
"Employee" means any officer or employee (as defined in
accordance with Section 3401(c) of the Internal Revenue Code of 1986, as
amended) of the Trust.
"Independent Trustee" means a member of the Board of Trustees
who is not also an employee of the Trust and who is otherwise a Disinterested
Person.
"Predecessor Program" means RPS Realty Trust, Resources
Pension Shares 1, Resources Pension Shares 2, Resources Pension Shares 3,
Integrated Resources Pension Shares 4, a California limited partnership,
Resources Pension Advisory Corp., and/or any of its affiliates, and such other
programs or entities as may be designated by the Committee.
"Ramco Transaction" means the transaction pursuant to which
RPS Realty Trust and Ramco-Gershenson, Inc. shall have contributed to
Ramco-Gershenson Properties, L.P. certain assets and properties in accordance
with the Master Agreement, dated as of April 3, 1995.
"Retirement" means an Optionee's Termination of Employment or
voluntary retirement as a Trustee (which ever is later) after attainment of age
55 and completion of fifteen years of continuous service to the Trust and/or
any Predecessor Program or as otherwise determined by the Board of Trustees or
the Trust.
"Termination of Employment" means the time when the
employee-employer relationship between the Optionee and the Trust is terminated
for any reason or, if the Optionee is covered by an employment agreement, the
time such employment agreement expires by its terms (provided such Optionee
does not continue to serve the Trust as an employee).
"Trustee" means any member of the Board of Trustees.
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<PAGE> 50
20. GOVERNING LAW
The Plan shall be governed by the laws of the State of
Maryland, without regard to the conflicts of law principles thereof.
21. EFFECTIVE DATE
The Plan was originally effective December 6, 1989. The
amended and restated Plan shall become effective upon (i) adoption by the Board
of Trustees of the Trust, (ii) approval by the holders of a majority of the
issued and outstanding Shares of the Trust present or represented and entitled
to vote at a meeting of shareholders and (iii) consummation of the Ramco
Transaction (the "Effective Date"), and shall continue in effect thereafter
until terminated or suspended by the Committee. In the event shareholder
approval is not obtained, and/or the Ramco Transaction is not consummated, the
terms and conditions of the RPS Realty Trust 1989 Employees' Stock Option Plan,
as in effect prior to this amendment and restatement, shall remain in full
force and effect.
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<PAGE> 51
Exhibit A
<TABLE>
<CAPTION>
Number of Options Number of Options
Outstanding Prior to Outstanding Upon
Name Effective Date Effective Date*
---- -------------------- ----------------- --
<S> <C> <C>
Joel Pashcow 600,000 150,000
Herbert Liechtung 600,000 150,000
Edwin Frankel 50,000 12,500
John J. Johnston, Jr. 50,000 12,500
Steven Liechtung 20,000 5,000
Nancy Comerford 5,000 1,250
</TABLE>
____________________
* Post-reverse stock split.
<PAGE> 52
Schedule 1
<TABLE>
<CAPTION>
Mortgage Loan Trust Advance
- ------------- -------------
<S> <C>
Simmons Manufacturing Warehouse $ 1,500,000
Coral Way Shopping Center 3,000,000
1-5 North Wabash Avenue 2,850,000
1733-53 Mass Avenue 2,200,000
Mt. Morris Commons Shopping Center 2,700,000
New England Telephone Building 3,000,000
19 Rector Street Office Building 3,000,000
Hylan Plaza Shopping Center 25,000,000
NCR Building 468,493
Branhaven Plaza Shopping Center 2,800,000
Copps Hill Shopping Center 3,590,000
Madison Shopping Center 1,550,000
Holiday Park Shopping Center 1,916,000
</TABLE>
<PAGE> 53
Exhibit C
Proposed Amendments to the Employee Plan:
1. The expiration date of the Employee Plan and all outstanding options
granted thereunder will be extended for five years until December 6,
2004.
2. Paragraph 9(a) of the Employee Plan will be amended in a manner that
makes it inapplicable to any optionee whose employment is terminated
for a reason other than death or disability for as long as such
optionee serves the Trust as a trustee.
3. The three month period described in paragraph 9(a) of the Employee
Plan will be extended to one year.
4. Options granted under the Employee Plan will, under an individual
option agreement between the Trust and Employee, be assignable to
members of an optionee's immediate family (including trusts for such
family members).
5. If an optionee ceases to be an employee or trustee of the Trust due to
his retirement at or after the age of 55 and has provided the Trust
and its predecessors with at least 15 years of service,the optionee
will have 5 years from the date of retirement to exercise an option
granted under the plan.
6. In the event the Spin-Off Transaction does not occur and,
alternatively, the Trust sells or disposes of the Mortgage Loans
listed on Schedule 1 (collectively, the "Transferred Assets"), the
Employee Plan will be amended to provide that the exercise price of
the options will be reduced by multiplying the existing exercise price
by a fraction, the numerator of which is the net value ascribed to the
Transferred Assets by Dean Witter Reynolds Inc. (the "Transferred
Asset Value") and the denominator of which is the sum of (i) the
Transferred Asset Value and (ii) the fair market value of the Trust's
assets that will remain in the Trust (or will be contributed to a
subsidiary partnership) (as determined by Dean Witter Reynolds Inc.).
<PAGE> 54
Schedule 1
<TABLE>
<CAPTION>
Mortgage Loan Trust Advance
- ------------- -------------
<S> <C>
Simmons Manufacturing Warehouse $ 1,500,000
Coral Way Shopping Center 3,000,000
1-5 North Wabash Avenue 2,850,000
1733-53 Mass Avenue 2,200,000
Mt. Morris Commons Shopping Center 2,700,000
New England Telephone Building 3,000,000
19 Rector Street Office Building 3,000,000
Hylan Plaza Shopping Center 25,000,000
NCR Building 468,493
Branhaven Plaza Shopping Center 2,800,000
Copps Hill Shopping Center 3,590,000
Madison Shopping Center 1,550,000
Holiday Park Shopping Center 1,916,000
</TABLE>
<PAGE> 55
EXHIBIT D
FORM OF RELEASE
Herbert Liechtung, for himself and on behalf of his heirs,
executors, administrators, successors and assigns (collectively, the
"Releasor"), hereby remises, releases and forever discharges RPS Realty Trust
(the "Trust") and its direct and indirect subsidiaries, shareholders, trustees,
affiliates, predecessors, successors and assigns, and its present and former
trustees, officers, employees, agents, attorneys and its heirs, executors,
administrators, successors and assigns (collectively, the Releasees"), and each
of them, of and from any and all claims, demands, or causes of action whatsoever
from the beginning of the world to the date present, whether individual, class
or derivative in nature, at law or in equity, whether based on any federal,
state or foreign law or right of action, foreseen or unforeseen, matured or
unmatured, known or unknown, accrued or not accrued, arising out of or in
connection with the Employment Agreement dated October 24, 1988 between Releasor
and the Trust (the "Employment Agreement") and Releasor's employment by the
Trust and/or the Trust's predecessors (including Resources Pension Shares 1,
Resources Pension Shares 2, Resources Pension Shares 3 and Integrated Resources
Pension Shares 4) which any Releasor has, had or have or can, shall, or may
hereafter have against the Releasees, or any of them, with the exception of any
rights to indemnification under paragraph 13 of the Employment Agreement and any
rights under the Agreement dated March 1, 1995 between Releasor and the Trust
(the "Surviving Claims").
Releasor hereby acknowledges that he may hereafter discover
facts in addition to or different from those he now knows or believes to be
true with respect to the subject matter of this release but that it is his
intention to, and he does hereby, fully, finally and forever settle and release
any and all claims, demands, and causes of action, known or unknown, suspected
or unsuspected, of every kind and nature whatsoever, which now exist, may
hereafter exist or may heretofore have existed with respect to the subject
matter of this release; in furtherance of such intention, he acknowledges that
this release shall be and remain in effect as a full and complete release of any
and all claims or matters he has, may have or may hereafter have against any
Releasee arising out of or in connection with the Employment Agreement, with the
exception of the Surviving Claims, notwithstanding the subsequent discovery or
existence of such additional or different facts. IN WITNESS WHEREOF, the
undersigned has duly executed this release as of the ___ day of ___________,
1995.
_____________________________
Herbert Liechtung
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<PAGE> 56
EXHIBIT E
FORM OF RELEASE
RPS Realty Trust (the "Trust"), for itself and on behalf of
its direct and indirect subsidiaries, shareholders, trustees, affiliates,
predecessors, successors and assigns, and its present and former trustees,
officers, employees, agents, attorneys and its heirs, executors,
administrators, successors and assigns (collectively, the Releasor"), hereby
remises, releases and forever discharges Herbert Liechtung and on his heirs,
executors, administrators, successors and assigns (collectively, the
"Releasee"), of and from any and all claims, demands, or causes of action
whatsoever from the beginning of the world to the date present, whether
individual, class or derivative in nature, at law or in equity, whether based
on any federal, state or foreign law or right of action, foreseen or
unforeseen, matured or unmatured, known or unknown, accrued or not accrued,
arising out of or in connection with the Employment Agreement dated October 24,
1988 between Releasee and the Trust (the "Employment Agreement") and Releasee's
employment by the Trust and/or the Trust's predecessors (including Resources
Pension Shares 1, Resources Pension Shares 2, Resources Pension Shares 3 and
Integrated Resources Pension Shares 4) which any Releasor has, had or have or
can, shall, or may hereafter have against the Releasee.
Releasor hereby acknowledges that it may hereafter discover
facts in addition to or different from those it now knows or believes to be
true with respect to the subject matter of this release but that it is its
intention to, and it does hereby, fully, finally and forever settle and release
any and all claims, demands, and causes of action, known or unknown, suspected
or unsuspected, of every kind and nature whatsoever, which now exist, may
hereafter exist or may heretofore have existed with respect to the subject
matter of this release; in furtherance of such intention, it acknowledges that
this release shall be and remain in effect as a full and complete release of any
and all claims or matters it has, may have or may hereafter have against any
Releasee arising out of or in connection with the Employment Agreement,
notwithstanding the subsequent discovery or existence of such additional or
different facts.
IN WITNESS WHEREOF, the undersigned has duly executed this
release as of the ___ day of __________, 1995.
RPS REALTY TRUST
By:_________________________________
E-1
