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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 27, 1995
RPS REALTY TRUST
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(Exact name of registrant as specified in its charter)
MASSACHUSETTS
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(State or other jurisdiction of incorporation)
1-10093 13-6908486
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(Commission File Number) (IRS Employer Identification No.)
747 Third Avenue, New York, New York 10017
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 355-1255
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(Former name or former address, if changed since last report)
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Item 1(b) Changes of Control of Registrant
Item 5 Other Events
On December 27, 1995, the Registrant, Ramco-Gershenson, Inc.
("Ramco"), the stockholders of Ramco and certain affiliates of Ramco entered
into the Amended and Restated Master Agreement, (the "Amended Master
Agreement") which amends and restates the Master Agreement, dated April 10,
1995, by and among the Registrant, Ramco and certain affiliates of Ramco,
relating to the acquisition by the Registrant of certain stock interests in
Ramco and substantially all of the real estate assets of Ramco's affiliates
(the "Ramco Transaction").
Additional information with respect to the Ramco Transaction will be
included in a proxy statement to be distributed to the Registrant's
shareholders, pursuant to which the Registrant will seek the approval of its
shareholders of the Ramco Transaction and certain related transactions.
Notwithstanding the filing of this Form 8-K under Item 1(b) hereof,
the Registrant does not believe that the transactions contemplated by the Ramco
Transaction will result in a change of control of the Registrant.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RPS REALTY TRUST
(Registrant)
Date: January 10, 1996 By: /s/Edwin R. Frankel
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Edwin R. Frankel, Senior Vice
President and Treasurer
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EXHIBIT INDEX
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Sequential
Exhibit Page No.
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2.1 Amended and Restated Master Agreement dated as of December 27,
1995 among Registrant, Ramco-Gershenson, Inc., Dennis
Gershenson, Joel Gershenson, Bruce Gershenson, Richard
Gershenson, Michael A. Ward, Michael A. Ward U/T/A, dated
2/22/77, as amended, Ramco-Gershenson Properties, L.P. and the
Ramco Contributing Parties, together with schedules and
exhibits thereto.
99.1 Press Release of Registrant dated January 2, 1996.
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EXHIBIT 2.1
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AMENDED AND RESTATED
MASTER AGREEMENT
DATED AS OF DECEMBER 27, 1995
AMONG
RPS REALTY TRUST,
RAMCO-GERSHENSON, INC.,
DENNIS GERSHENSON,
JOEL GERSHENSON,
BRUCE GERSHENSON,
RICHARD GERSHENSON,
MICHAEL A. WARD,
MICHAEL A. WARD U/T/A,
DATED 2/22/77, AS AMENDED,
RAMCO-GERSHENSON PROPERTIES, L.P.
AND
EACH OF THE RAMCO CONTRIBUTING PARTIES
SET FORTH ON SCHEDULE A
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TABLE OF CONTENTS
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1. The Transaction....................................................................................... 2
1.1 Contribution by the Ramco Group............................................................ 2
1.2 Contribution by the Trust.................................................................. 2
1.3 Consummation of the Ramco Agreements....................................................... 2
1.4 Dilution of Operating Partnership Interests; Admission
of General Partner...................................................................... 2
1.5 Consideration.............................................................................. 3
1.6 Amendments to Ramco Agreements............................................................. 4
1.7 Adjustments to Ramco Interest.............................................................. 5
1.8 Restructuring of the Trust; Management..................................................... 6
1.10 RPS Closing Date Balance Sheet; Use of Excess Cash......................................... 7
1.11 Operating Partnership Closing Date Balance Sheet........................................... 8
1.12 Merger Partnership Closing Date Balance Sheet.............................................. 8
1.13 Reimbursement of Expenses.................................................................. 8
1.14 Electricity................................................................................ 9
1.15 Ramco Debt................................................................................. 9
2. The Closing........................................................................................... 9
3. Conditions to Closing................................................................................. 10
3.1 Conditions to Obligations of All Parties................................................... 10
3.2 Conditions to Obligations of Ramco, the Ramco
Principals and the Ramco Contributing Parties........................................... 12
3.3 Conditions to the Trust's Obligations...................................................... 13
4. Representations and Warranties of Ramco and the Ramco Principals...................................... 17
4.1 Organization of Ramco; Authorization....................................................... 17
4.2 No Conflict as to the Ramco Group.......................................................... 18
4.3 Consents and Approvals of Governmental Authorities......................................... 18
4.4 Other Consents............................................................................. 18
4.5 Financial Statements....................................................................... 18
4.6 Representations and Warranties Contained in the Ramco
Agreements and the Ramco Stock Contribution Agreement................................... 20
4.7 Ramco Properties........................................................................... 20
4.8 No Undisclosed Liabilities................................................................. 21
4.9 Litigation................................................................................. 21
4.10 No Material Adverse Change................................................................. 22
4.11 Compliance with Law........................................................................ 22
4.12 No Brokers or Finders...................................................................... 22
4.13 Books and Records.......................................................................... 22
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4.14 Accredited Investor Status; Compliance with Securities Laws................................ 23
4.15 Proxy Statement............................................................................ 24
4.16 Employee Benefit Plans; Compliance with ERISA.............................................. 24
4.17 Employees; Labor Relations................................................................. 26
4.18 Organization of the Operating Partnership.................................................. 26
4.19 Tax Status of Operating Partnership........................................................ 27
4.20 General and Administrative Expenses........................................................ 27
4.21 Michigan Single Business Tax............................................................... 27
5. Representations and Warranties of the Trust........................................................... 27
5.1 Organization of the Trust; Authorization................................................... 27
5.2 Capitalization of the Trust and its Subsidiaries........................................... 27
5.3 No Conflict as to the Trust................................................................ 28
5.4 Consents and Approvals of Governmental Authorities......................................... 28
5.5 Other Consents............................................................................. 28
5.6 Reports and Financial Statements........................................................... 28
5.7 Litigation................................................................................. 29
5.8 Taxes...................................................................................... 29
5.9 Material Contracts......................................................................... 30
5.10 No Material Adverse Change................................................................. 30
5.11 Compliance with Law........................................................................ 30
5.12 Books and Records.......................................................................... 30
5.13 No Brokers or Finders...................................................................... 30
5.14 Employee Benefit Plans; Compliance with ERISA.............................................. 30
5.15 Employees; Labor Relations................................................................. 32
5.16 Undisclosed Liabilities.................................................................... 33
5.17 Tax Status of RPS Mortgage................................................................. 33
5.18 Status of RPS Properties................................................................... 33
5.19 Representations and Warranties Contained in the RPS Contribution
Agreements.............................................................................. 33
6. Covenants............................................................................................. 33
6.1 Trust Shareholder Meeting; Proxy Statement................................................. 33
6.2 Compliance with Securities Laws............................................................ 35
6.3 Consent of Partners........................................................................ 35
6.4 Closing Loans; Line of Credit.............................................................. 36
6.5 Access..................................................................................... 36
6.6 Public Announcements....................................................................... 37
6.7 No Solicitation............................................................................ 37
6.8 Indemnification and Insurance.............................................................. 38
6.9 Notification of Certain Matters............................................................ 39
6.10 Approvals.................................................................................. 40
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6.11 Operation in Ordinary Course............................................................... 40
6.12 Business Organization...................................................................... 40
6.13 Conduct of Business by the Ramco Group and the
Trust Prior to the Closing.............................................................. 40
6.14 Reservation and Listing of Shares.......................................................... 41
6.15 Advancement of Expenses.................................................................... 42
6.16 Uses of RPS Cash........................................................................... 42
6.17 Intentionally Omitted...................................................................... 43
6.18 Waiver of Conditions in Ramco Agreements................................................... 43
6.19 Satisfaction of Conditions under Ramco Agreements.......................................... 44
6.20 Other Actions by Ramco, the Ramco Principals
and the Trust........................................................................... 44
6.21 Responsibility for Covenants............................................................... 44
6.22 Executive Committee........................................................................ 44
6.23 Payment of Accounting Expenses............................................................. 44
6.24 North Towne Option Agreement............................................................... 44
6.25 Kroger Lease............................................................................... 44
6.26 Trustees and Officers...................................................................... 45
6.27 Certain Arrangements with Executives....................................................... 45
7. Survival of Representations and Warranties; Indemnification........................................... 45
7.1 Survival................................................................................... 45
7.2 Time and Other Limitations................................................................. 45
7.3 Limitations as to Amount................................................................... 46
7.4 Indemnification by the Ramco Principals.................................................... 47
7.5 Indemnification by the Trust............................................................... 47
7.6 Procedure for Indemnification.............................................................. 48
8. Definitions........................................................................................... 49
9. Termination........................................................................................... 57
9.1 Termination................................................................................ 57
9.2 Effect of Termination...................................................................... 59
10. Notices............................................................................................... 59
11. Jurisdiction; Service of Process...................................................................... 60
11.1 Jurisdiction............................................................................... 60
11.2 Service of Process......................................................................... 60
12. Miscellaneous......................................................................................... 60
12.1 Expenses................................................................................... 60
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12.2 Specific Performance....................................................................... 62
12.3 Captions................................................................................... 62
12.4 No Waiver.................................................................................. 62
12.5 Exclusive Agreement; Amendment............................................................. 62
12.6 Counterparts............................................................................... 62
12.7 Liquidation................................................................................ 62
12.8 Acknowledgments............................................................................ 63
12.9 Governing Law.............................................................................. 63
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EXHIBITS
Exhibit A - Form of Partnership Agreement
Exhibit B - Form of Amendments to Declaration of Trust
Exhibit C - Intentionally Omitted
Exhibit D - Intentionally Omitted
Exhibit E - Form of New Option Plan
Exhibit F - Form of Ramco Principals' Employment Agreements
Exhibit G - Intentionally Omitted
Exhibit H - List of Michigan Properties
Exhibit I - Form of Pledge Agreement
Exhibit J - Form of Registration Rights Agreement
Exhibit K - Form of Lock-Up Agreement
Exhibit L - Form of Non-Competition Agreement
Exhibit M - Form of Excluded Assets Option Agreement
Exhibit N - Form of North Towne Option Agreement
Exhibit O - Form of Ramco Stock Contribution Agreement
Exhibit P - Form of Amendment to Ramco Agreements
Exhibit Q - Form of Tax Agreement
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<PAGE> 8
AMENDED AND RESTATED
MASTER AGREEMENT
Amended and Restated Master Agreement, dated as of December 27, 1995,
among RPS Realty Trust, a Massachusetts business trust (the "TRUST"),
Ramco-Gershenson, Inc., a Michigan corporation ("RAMCO"), Dennis Gershenson,
Joel Gershenson, Bruce Gershenson, Richard Gershenson, Michael A. Ward, Michael
A. Ward, Trustee U/T/A dated 2/22/77, as amended (collectively, the "RAMCO
PRINCIPALS"), Ramco-Gershenson Properties, L.P., a Delaware limited partnership
(the "OPERATING PARTNERSHIP"), and the Ramco affiliates listed on Schedule A (to
the extent of Sections 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12 hereof) (the "RAMCO
CONTRIBUTING PARTIES"). Capitalized terms used in this Agreement shall have the
meaning set forth in Section 8.
WHEREAS, the Operating Partnership was created on December 21, 1994;
and
WHEREAS, the Operating Partnership has entered into agreements with
certain Ramco Contributing Parties, which Agreements are described on Schedule 1
hereto (the "RAMCO AGREEMENTS"); and
WHEREAS, pursuant to the terms of the Ramco Agreements, the Operating
Partnership has agreed to acquire the shopping center properties and the
interests in the shopping center properties listed on Schedule 1 (the "RAMCO
PROPERTIES") as described in the Ramco Agreements, such acquisitions to occur,
in some cases, by means of merger of a Ramco Contributing Party with the
Operating Partnership, and, in other cases, by means of the contribution of the
Ramco Property in exchange for interests in the Operating Partnership
("OPERATING PARTNERSHIP INTERESTS"); and
WHEREAS, the Operating Partnership has consummated the transactions
contemplated by four of the Ramco Agreements, and now owns four of the Ramco
Properties, as described on Schedule 1 (collectively, the "DIRECT TRANSFER RAMCO
PROPERTIES") and the Ramco Contributing Parties which were the former owners of
the Direct Transfer Ramco Properties are now limited partners in the Operating
Partnership (collectively, the "DIRECT TRANSFER RAMCO CONTRIBUTING PARTIES");
and
WHEREAS, the Trust and its Subsidiaries, the Ramco Principals and the
Ramco Contributing Parties now desire to effectuate an acquisition transaction
through the use of the Operating Partnership by contributing certain assets and
properties to the Operating Partnership in exchange for Operating Partnership
Interests, and to cause the Operating Partnership to consummate the transactions
contemplated by the Ramco Agreements, all upon the terms and conditions
hereinafter set forth.
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WHEREAS, the parties hereto have entered into a Master Agreement
dated as of April 10, 1995 (the "ORIGINAL MASTER AGREEMENT"), which parties now
desire to amend and restate their agreement in its entirety.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, conditions and promises hereinafter set forth, the parties agree as
follows:
1. THE TRANSACTION.
1.1 Contribution by the Ramco Group. Subject to the terms and
conditions hereof and in reliance upon the representations, warranties and
agreements contained herein and in the Ramco Stock Contribution Agreement and
the Closing Conditions Agreement, at the Closing, the Ramco Principals and the
applicable Ramco Contributing Parties shall contribute, or cause to be
contributed, to the Operating Partnership (a) 100% of the non-voting common
stock and 5% of the voting common stock (the "RAMCO STOCK") of Ramco and (b) the
development land and out parcels and the options on the development land and out
parcels set forth on Schedule 1.1(b) (the "DEVELOPMENT LAND" and collectively
with the Ramco Properties and the Ramco Stock, the "RAMCO CONTRIBUTION ASSETS").
1.2 Contribution by the Trust. Subject to the terms and conditions
hereof and in reliance upon the representations, warranties and agreements
contained herein and in the RPS Contribution Agreements, at the Closing, the
Trust or its Subsidiaries shall contribute, or cause to be contributed, to the
Operating Partnership (a) the shopping center properties listed on Schedule 1.2
(the "RPS PROPERTIES") and (b) $68,000,000 (reduced by the Refinance Loan
Advance) (the "RPS CASH" and together with the RPS Properties, the "TRUST
CONTRIBUTION ASSETS").
1.3 Consummation of the Ramco Agreements. Subject to the terms and
conditions hereof and in reliance upon the representations, warranties, and
agreements contained herein and in the Ramco Agreements, at the Closing, the
Operating Partnership and the Ramco Contributing Parties shall cause the
transactions contemplated by the Ramco Agreements to be consummated in
accordance with the terms of the Ramco Agreements, as modified as set forth in
Section 1.6 hereof.
1.4 Dilution of Operating Partnership Interests; Admission of General
Partner. Subject to the terms and conditions hereof, at the Closing, the amount
of the Operating Partnership Interests held by the Direct Transfer Ramco
Contributing Parties will be diluted, as contemplated by the Ramco Agreements
relating to the Direct Transfer Ramco Properties and this Agreement, so that the
Operating Partnership Interests held or issued to the Trust and/or its
Subsidiaries, on the one hand, and the Ramco Contributing Parties and the Ramco
Principals on the other hand, are in accordance with Section 1.5 hereof. At the
Closing, the Ramco Principals will cause Ramco REIT, Inc. to withdraw as general
partner of the Operating Partnership and the Trust will be admitted as the sole
general partner of the Operating Partnership, and each member of the Ramco Group
that is or at the Closing will be
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a limited partner in the Operating Partnership will consent to the admission of
the Trust as a general partner of the Operating Partnership. At the Closing, the
Trust and each member of the Ramco Group who is or will be a limited partner in
the Operating Partnership will enter into and execute the Partnership Agreement,
in the form attached hereto as Exhibit A.
1.5 Consideration. Subject to the terms and conditions hereof, and in
consideration of the contributions set forth above and the consummation of the
transactions described above, and subject to further adjustment as set forth in
Sections 1.5(e) and 1.7 hereof relating to the leasing up of the Jackson
Crossing Property, at the Closing the Trust and/or its Subsidiaries, on the one
hand, and the Ramco Contributing Parties and the Ramco Principals, on the other
hand, shall receive Operating Partnership Interests as follows:
(a) The Ramco Contributing Parties and the Ramco Principals aggregate
percentage interest (the "RAMCO INTEREST") in the Operating Partnership shall
equal 25.02%; provided, however, in no event shall the Ramco Interest (including
additional Operating Partnership Interests earned, if any, pursuant to Section
1.7(a) or attributable to up to $1,300,000 in equity value relating to the
property subject to the North Towne Option Agreement) exceed 37% of the profits,
losses and distributions of the Operating Partnership (the "MAXIMUM RAMCO
INTEREST"). Subject to clause (e) below, the Ramco Interest shall be divided
among and issued to the Ramco Group in accordance with the terms of the Ramco
Agreements and the Ramco Stock Contribution Agreement.
(b) The Trust and/or its Subsidiaries shall receive a percentage
interest (the "TRUST INTEREST") in the Operating Partnership equal to 74.98%.
If, as a result of the adjustments to the Ramco Interest pursuant to Section
1.7(a) and the closing of the transactions contemplated by the North Towne
Option Agreement, such interest would exceed 37%, the Trust's Interest shall be
increased by a percentage equal to such excess.
(c) The Operating Partnership Interests that the Ramco Group will
receive pursuant to this Section 1.5 will consist solely of limited partnership
interests that, pursuant to the Partnership Agreement, will be divided into
individual units ("OP UNITS"). At the Closing, the Ramco Group will be issued
2,377,492 OP Units.
(d) The Operating Partnership Interests that the Trust and/or its
Subsidiaries will receive pursuant to this Section 1.5 will consist of the
following: (i) a 1% general partner profits, losses and distributions interest
in the Operating Partnership and (ii) the remaining balance of the Trust's
Interest will consist of limited partnership interests that, in each case, will
be divided into OP Units. At the Closing, the Trust will be issued 7,123,105 OP
Units.
(e) If, at the Closing, any of the escrow release provisions relating
to the leases set forth on Schedule 1.5(e) shall not have been satisfied, the
Ramco Principals and the Ramco Contributing Parties will escrow (the "JACKSON
ESCROW"), with respect to each such lease, the number of OP Units allocated to
such lease as set forth on Schedule 1.5(e). If at
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any time on or prior to March 31, 1997 (the "ESCROW TERMINATION DATE") any
tenant under a lease set forth on Schedule 1.5(e) shall have given notice of
termination of the lease by reason of the right to terminate set forth on
Schedule 1.5(e) and the landlord thereunder shall have failed to timely cure
such termination, if curable, the Operating Partnership shall, without any
further action on the part of any party, be deemed to have acquired the number
of OP Units allocated to such lease (as set forth on Schedule 1.5(e)) for $10.00
and the applicable Ramco Principals and Ramco Contributing Parties shall assign,
deliver and transfer such OP Units to the Operating Partnership. Promptly
following such acquisition, the Operating Partnership's books and records
(including, without limitation, the Partnership Agreement) shall be amended to
reflect the Operating Partnership's repurchase of such OP Units. The OP Units
subject to the Jackson Escrow will be held in escrow (subject to earlier
repurchase by the Operating Partnership) until the earlier of (i) with respect
to each lease listed on Schedule 1.5(e), the occurrence of an event that
triggers the release from escrow relating to such lease as set forth on such
Schedule and (ii) the Escrow Termination Date. Any OP Units which remain in
escrow on the Escrow Termination Date shall be delivered to the Ramco Group to
be allocated as directed by the Ramco Principals. Prior to the release or
repurchase of any OP Units subject to the Jackson Escrow, the Ramco Principals
and the Ramco Contributing Parties shall be entitled to receive and retain any
and all cash distributions attributable to the OP Units that are subject to the
Jackson Escrow. If, at the Closing, the Jackson Escrow is established, the Ramco
Principals and the Ramco Contributing Parties will grant to the Operating
Partnership a security interest in the OP Units which are the subject of the
Jackson Escrow and in connection therewith will execute and deliver to the
Operating Partnership such instruments and documents (including, without
limitation, Form UCC-1s) and take or cause to be taken such further actions as
the Trust may reasonably request in order for the Operating Partnership to
perfect its security interest in the Jackson Escrow. If, prior to the Closing,
any tenant under a lease listed on Schedule 1.5(e) shall have given notice of
termination by reason of the right to terminate set forth on Schedule 1.5(e) and
the landlord thereunder shall have failed to timely cure such termination, if
curable, then, notwithstanding anything to the contrary in the Ramco Agreements,
the Ramco Principals and the Ramco Contributing Parties shall forfeit the right
to receive at the Closing the number of OP Units allocated such lease as set
forth on Schedule 1.5(e).
(f) Notwithstanding anything to the contrary contained in the Ramco
Agreements, each Ramco Principal and Ramco Contributing Party acknowledges that
the Maximum Ramco Interest will not exceed the amount set forth in Section
1.5(a).
1.6 Amendments to Ramco Agreements. Prior to the Closing, the
Operating Partnership and each Ramco Contributing Party which is a party to a
Ramco Agreement executed in December 1994 which, as of the date hereof has not
closed, will duly adopt amendments to the Ramco Agreements in the form attached
hereto as Exhibit P. Furthermore, the Direct Transfer Ramco Contributing Parties
shall enter into a letter agreement in the form of Schedule 1.6(b).
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1.7 Adjustments to Ramco Interest. Following the Closing, the
members of the Ramco Contributing Parties set forth below shall have the right
to earn additional Operating Partnership Interests as follows:
(i) Subject to clause (iii) below, if a Qualifying Lease
that is the subject of more than 80% of the PharMor Space is entered into
before the date the Proxy Statement is first mailed to the Trust's
shareholders, then as soon as practicable after the date the tenant under such
lease begins paying rent, Ramco Jackson Delaware Limited Partnership shall be
issued additional OP Units based on the formula set forth on Schedule 1.7(a)(i)
(collectively, the "PHARMOR SPACE UNITS"); provided, however, such units shall
not be earned or issued if such tenant is not paying rent under such lease on
or before December 31, 1996; provided, further, such units shall not be earned
or issued to the extent that any income attributable to the PharMor Space is
reflected on the Updated Distribution Pro Forma. The PharMor Space Units
shall, upon issuance, be held in escrow by the Operating Partnership until the
calculation referred to in clause (ii) below is made. If, at the time the
calculation in clause (ii) below is made, the calculation of OP Units pursuant
to Schedule 1.7(a)(ii) is a positive number, the Operating Partnership shall
release to Ramco Jackson Delaware Limited Partnership the PharMor Space Units.
If as of the date the calculation set forth in clause (ii) below is made, NOI
(as such term is defined in Schedule 1.7(a)(ii)) is a negative number
("NEGATIVE JACKSON NOI"), then the Operating Partnership shall, without any
further action on the part of any party, be deemed to have acquired the number
of PharMor Space Units set forth below for $10.00 (and Ramco Jackson Delaware
Limited Partnership shall assign, deliver and transfer such Units to the
Operating Partnership) and any remaining PharMor Space Units shall be released
to Ramco Jackson Delaware Limited Partnership. Promptly following such
acquisition, the Operating Partnership's books and records (including, without
limitation, the Partnership Agreement) shall be amended to reflect the
Operating Partnership's repurchase of such OP Units. The number of PharMor
Space Units subject to repurchase pursuant to the preceding sentence (the
"PHARMOR REPURCHASE UNITS") shall be calculated in the manner set forth in
Schedule 1.7(a)(i)(A). Prior to the release or repurchase of any PharMor Space
Units that are held in escrow pursuant to this Section 1.7(a)(i), Ramco Jackson
Delaware Limited Partnership shall be entitled to receive and retain any and
all cash distributions attributable to the PharMor Space Units and, when and if
issued, Ramco Jackson Delaware Limited Partnership will grant to the Operating
Partnership a security interest in the PharMor Space Units and in connection
therewith will execute and deliver to the Operating Partnership such
instruments and documents (including, without limitation, Form UCC-1s) and take
or cause to be taken such further actions as the Trust may reasonably request
in order to perfect the Operating Partnership's security interest in such
Units. The calculation of the issuance of the PharMor Space Units pursuant to
this Section 1.7(a)(i) shall be made by independent accountants selected by a
majority of the Independent Trustees on the date such units are earned and,
prior to any issuance, shall be reviewed and approved by at least a majority of
the Independent Trustees.
(ii) Subject to clause (iii) below, as soon as practicable
after March 31, 1997, Ramco Jackson Delaware Limited Partnership shall be issued
a number of OP Units
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equal to the positive difference (if any) between (x) the number of OP Units
calculated based on the formula set forth on Schedule 1.7(a)(ii) and (y) the
number of PharMor Space Units originally issued pursuant to clause (i) above.
The calculation of the additional issuance of OP Units pursuant to this Section
1.7(a)(ii) shall be made by independent accountants selected by a majority of
the Independent Trustees on March 31, 1997 and, prior to any issuance, shall be
reviewed and approved by at least a majority of the Independent Trustees. Except
with respect to the obligations of the landlord under Section 3.5 of the Kohl's
Lease and except as otherwise agreed to in writing by the Trust, after the
Closing, the Operating Partnership (and not the members of the Ramco Group)
shall fund all expenditures relating to new tenants, tenant improvements, tenant
allowances and leasing costs at the Jackson Crossing Property. The Ramco
Principals, jointly and severally, shall be responsible for satisfying in full
in cash the landlord's obligations under Section 3.5 of the Kohl's Lease. If,
with the written consent of the Trust, the Ramco Group (or any member thereof)
assumes the obligation to pay tenant improvements, tenant allowances and leasing
costs relating to new tenants at the Jackson Crossing Property, the Ramco
Principals, jointly and severally, shall be responsible for satisfying in full
in cash the obligations of the Ramco Group with respect to such tenant
improvements, tenant allowances and leasing costs. The Operating Partnership and
the Trust shall have the right to set off all amounts payable to the Ramco
Principals (by virtue of their ownership of OP Units or Shares or otherwise) any
amounts then due or claimed from the Ramco Principals pursuant to this Section
1.7(a)(ii).
(iii) In no event shall the number of OP Units issued pursuant
to clauses (i) and (ii) of this Section 1.7 exceed the difference between (A)
the number of OP Units that would have been issued to the Ramco Principals and
the Ramco Contributing Parties at the Closing assuming adjusted net operating
income from the Jackson Crossing Property as set forth (or included as part of)
the estimated Funds from Operations as set forth on the Updated Distribution Pro
Forma was $2,824,000 and (B) the number of OP Units issued to the Ramco Group at
the Closing (including any OP Units attributable to the Jackson Escrow and, if
issued at the Closing, the PharMor Space Units) decreased by the number of OP
Units which were the subject of the Jackson Escrow and were acquired by the
Trust pursuant to Section 1.5(e) hereof.
1.8 Restructuring of the Trust; Management. (a) Prior to or
simultaneous with the Closing, the Trust shall dispose of the RPS Mortgage
Assets in accordance with Section 3.1(e) hereof.
(b) The Trust shall, subject to approval by the requisite vote of the
Trust's Shareholders, take all actions necessary to adopt an amendment to the
Trust's Declaration of Trust, substantially in the form of Exhibit B, such
amendment to become effective simultaneously with the Closing. The Trust shall
take all actions necessary to adopt any amendments to the Trust's By-Laws which
are necessary to make them consistent with such amendment to the Declaration of
Trust or may be necessary or appropriate in connection with the Contemplated
Transactions, such amendments to become effective simultaneously with the
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Closing. The amendments to the Declaration of Trust and By-Laws are collectively
referred to as the "CHARTER AMENDMENTS."
(c) Prior to or simultaneously with the Closing, the Trust shall
combine its Shares by means of a 1 for 4 reverse share split (the "REVERSE
SPLIT").
(d) The Trust shall take such action as may be necessary to cause the
trustees and executive officers of the Trust, immediately following the Closing,
to consist solely of the persons indicated on Schedule 1.8(d).
(e) Ramco and the Ramco Principals shall take such action as may be
necessary to cause the directors and officers of Ramco, immediately following
the Closing, to consist solely of the persons indicated on Schedule 1.8(e).
1.9 Benefit Plans. (a) The Trust shall, subject to approval by the
requisite vote of the Trust's shareholders, take all actions necessary to adopt
a new option plan (the "NEW OPTION PLAN") substantially in the form of Exhibit
E, such plan to become effective simultaneously with the Closing.
(b) Prior to or simultaneously with the Closing, the Trust and Ramco
shall take the actions set forth on Schedule 1.9 with respect to the other
employee benefit plans and arrangements of the Trust and Ramco, respectively, as
may be necessary or appropriate in connection with the Contemplated
Transactions.
1.10 RPS Closing Date Balance Sheet; Use of Excess Cash. (a) Not more
than 45 days after the Closing, the Trust shall prepare and deliver to the
limited partners of the Operating Partnership (other than the Trust) a balance
sheet (certified by the Trust's chief financial officer and reviewed and
approved by the Independent Trustees and applying the same accounting
principles, practices, methods and adjustments which were applied in connection
with the preparation of the RPS Financial Statements) as of the close of
business on the Closing Date (the "RPS CLOSING DATE BALANCE SHEET"), except that
(i) the RPS Contribution Assets and the assets that were contributed to RPS
Mortgage pursuant to Section 3.1(e) shall not be reflected as assets on the RPS
Closing Date Balance Sheet and (ii) any Trust liabilities that, pursuant to the
Contemplated Transactions, the Tax Agreement or the RPS Contribution Agreements,
were assumed or required to be paid for by the Operating Partnership or RPS
Mortgage and any liabilities listed on Schedule 1.10 shall not be reflected as
liabilities on the RPS Closing Date Balance Sheet. Promptly following the
preparation of the RPS Closing Date Balance Sheet, the Trust shall satisfy in
full any Trust liabilities listed on the RPS Closing Date Balance Sheet that
have not previously been satisfied (the "REMAINING RPS LIABILITIES") or the
Trust shall establish a reasonable reserve in order to satisfy such liabilities
and shall provide the limited partners of the Operating Partnership with
satisfactory evidence thereof.
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(b) Any assets reflected on the RPS Closing Date Balance Sheet which
are not utilized to satisfy the Remaining RPS Liabilities shall, promptly
following the preparation of the RPS Closing Date Balance Sheet, be contributed
to RPS Mortgage or distributed as a special dividend to the Trust's shareholders
of record as of the day prior to the Closing Date.
1.11 Operating Partnership Closing Date Balance Sheet. Not more than
45 days after the Closing, Ramco shall prepare and deliver to the Trust a
balance sheet of the Operating Partnership (certified by Ramco's chief financial
officer and prepared in accordance with generally accepted United States
accounting principles) as of the close of business on the Closing Date taking
into account the provisions of the Closing Conditions Agreement (the "OPERATING
PARTNERSHIP CLOSING DATE BALANCE SHEET"). To the extent the Operating
Partnership Closing Date Balance Sheet reflects an excess of liabilities over
assets applicable to operations prior to the Closing Date (other than
attributable to properties and long-term debt), as soon as practicable after the
preparation of the Operating Partnership Closing Date Balance Sheet, the Ramco
Principals and the Ramco Contributing Parties shall contribute to the Operating
Partnership an amount of cash equal to such shortfall. To the extent the
Operating Partnership Balance Sheet reflects an excess of assets over
liabilities applicable to operations prior to the Closing Date (other than
attributable to properties and long-term debt), the Operating Partnership shall,
as soon as practicable after the preparation of the Operating Partnership
Closing Date Balance Sheet, distribute such excess to the partners of the
Operating Partnership of record as of the day prior to the Closing Date.
1.12 Merger Partnership Closing Date Balance Sheet. Not more than 45
days after the Closing, Ramco shall prepare and deliver to the Trust a balance
sheet of each Ramco Contributing Party which will merge into the Operating
Partnership (certified by Ramco's chief financial officer and prepared in
accordance with generally accepted United States accounting principles) as of
the close of business on the Closing Date taking into account the provisions of
the applicable merger agreement (the "MERGER PARTNERSHIP CLOSING DATE BALANCE
SHEET"). To the extent the Merger Partnership Closing Date Balance Sheet
reflects an excess of liabilities over assets applicable to operations prior to
the Closing Date (other than attributable to properties and long-term debt), as
soon as practicable after the preparation of the Merger Partnership Closing Date
Balance Sheet, the Ramco Principals and the Ramco Contributing Parties shall
contribute to the Operating Partnership an amount of cash equal to such
shortfall. To the extent the Merger Partnership Balance Sheet reflects an excess
of assets over liabilities applicable to operations prior to the Closing Date
(other than attributable to properties and long-term debt), the Operating
Partnership shall, as soon as practicable after the preparation of the Merger
Partnership Closing Date Balance Sheet, distribute such excess working capital
to the partners of the Merger Partnership of record as of the day prior to the
Closing Date.
1.13 Reimbursement of Expenses. At the Closing, the Operating
Partnership shall reimburse the appropriate Affiliates of Ramco for all third
party out-of-pocket expenses incurred by such Affiliates related to options on
the Development Land listed on Schedule 1.1(b) from funds available under the
Line of Credit and upon presentation of reasonably
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<PAGE> 16
detailed documentation evidencing the incurrence thereof; provided, however,
such Affiliates shall not be reimbursed for any out-of-pocket expenses related
to the OfficeMax property. If, at the Closing, the Line of Credit has not been
established, such Affiliates of Ramco shall be entitled to receive such
reimbursement only at the time such credit facility is available to the
Operating Partnership for funding.
1.14 Electricity. If, following the Closing, (a) the Operating
Partnership sells, transfers or otherwise disposes of any Ramco Property listed
on Exhibit H (collectively, the "MICHIGAN PROPERTIES") which, based on the
audited statement of income from the Ramco Properties for year ended December
31, 1994, reported income attributable to the resale of electricity to tenants
and (b) as a result of such sale, transfer or disposition the transferee of the
Michigan Property does not receive the consents necessary to resell electricity
to the tenants at such property in accordance with the past practices of the
Ramco Group as they exist on the date hereof, the Ramco Principals shall,
jointly and severally, pay to the Operating Partnership, with respect to such
Michigan Property, an amount calculated in the manner set forth on Schedule
1.14. The obligation set forth in this Section 1.14 shall not apply to any
sales, transfers or dispositions of such Michigan Properties that occur (i) more
than 8 years after the Closing Date, except for any sales, transfers or
dispositions of Michigan Properties that occur after such date but relate to a
contract entered into prior to such date or (ii) after the date the Operating
Partnership obtains a written consent, license or authorization from the
applicable utility companies and/or Government Bodies, in form and substance
satisfactory to the Independent Trustees, that will permit the Operating
Partnership and any future owners of the Michigan Properties to resell
electricity to tenants at such properties in accordance with the past practices
of the Ramco Group as they exist on the date hereof for a period not less than
15 years from the Closing Date.
1.15 Ramco Debt. The Ramco Principals shall cause all indebtedness
owed by Ramco to the Ramco Principals or their respective Affiliates or
Associates (as such term is defined in Rule 12b-2 promulgated under the Exchange
Act) to be cancelled, effective as of the Closing.
2. THE CLOSING.
The closing of the Contemplated Transactions (the "CLOSING") shall
take place at the offices of Battle Fowler LLP, 75 East 55th Street, New York,
New York 10022 at 10:00 a.m. (New York City time) no later than the fifth
Business Day after the day on which the last of the conditions set forth in
Section 3 (other than such conditions which, by their terms, are not capable of
satisfaction until the Closing Date) is satisfied or, where permissible is
waived, unless another place, date or time is agreed to by the Trust and Ramco;
provided, however, that the Closing Date shall be no later than March 31, 1996
(the "TERMINATION DATE").
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3. CONDITIONS TO CLOSING.
3.1 Conditions to Obligations of All Parties. The obligations of the
parties to this Agreement to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by any party:
(a) Approval of Shareholders. The Contemplated Transactions shall
have been approved by the requisite vote of the Trust's shareholders under
applicable Massachusetts law, the Trust's Declaration of Trust and By-Laws and
the rules of the New York Stock Exchange, Inc.
(b) No Injunction. No permanent or preliminary injunction or
restraining order or other order by any court or other Governmental Body of
competent jurisdiction or other legal restraint or prohibition preventing
consummation of the Contemplated Transactions shall be in effect.
(c) Approvals and Consents. All Required Consents shall have been
obtained and shall be in full force and effect.
(d) Execution of Partnership Agreement. The Trust and/or its
Subsidiaries, Ramco, Ramco REIT, Inc., the Ramco Principals and each member of
the Ramco Group that is or at the Closing will be a limited partner in the
Operating Partnership shall have entered into the Partnership Agreement,
effective as of the Closing Date, and such agreement shall be in full force and
effect.
(e) Disposition of Mortgage Assets. (i) The Trust shall have disposed
of the assets set forth on Schedule 3.1(e) (the "RPS MORTGAGE ASSETS") either by
prepayment, sale or consummation of the Spin-Off Transaction.
(ii) In the event of a Spin-Off Transaction, RPS Mortgage
shall have executed such assumption agreements and other instruments as shall be
necessary or appropriate for it to assume from and after the Closing Date the
obligations and liabilities of the Trust relating to the RPS Mortgage Assets.
(f) Termination of Certain Employees. The Trust shall have terminated
all of its salaried employees (other than Herbert Liechtung and Joel M. Pashcow)
as of the Closing Date and shall have made to such employees or adequately
reserved for all salary, severance and bonus payments due to such employees.
(g) Employment Arrangements. The Trust and each of the Ramco
Principals (other than the Ward Trust) shall have entered into employment
agreements (the "RAMCO EMPLOYMENT AGREEMENTS") effective as of the Closing Date
substantially in the form of Exhibit F, such agreements shall be in full force
and effect and no cause for termination of any of such agreements shall exist.
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<PAGE> 18
(h) Adoption of New Option Plan. The New Option Plan shall have been
approved by the requisite vote of Trust's shareholders, and, as of the Closing
Date, shall be effective.
(i) Execution of Option Agreements. The Trust shall have authorized
the grant of 24,000 options to each of the Ramco Principals (other than the Ward
Trust) under the New Option Plan effective upon the Closing. The Trust shall
enter into option agreements with each of the Ramco Principals to effectuate
such grants, as described in the New Option Plan.
(j) Trustee Resignations and Appointments. The Trust shall have
received the resignations of four of its current trustees and the Trust shall
have taken all action as is required under applicable law to cause to be elected
to the Board of Trustees, effective upon the Closing, the following four
Trustees: Joel Gershenson, Dennis Gershenson, and two Independent Trustees
proposed by Ramco who are reasonably satisfactory to the Board of Trustees of
the Trust in the exercise of the Trustees' fiduciary responsibilities to the
Trust's shareholders.
(k) Charter Amendments. If required by applicable law or the Trust's
Declaration of Trust, the Charter Amendments shall have been approved by the
requisite vote of the Trust's shareholders. Simultaneously with the Closing, the
Trust shall file all documents necessary to effectuate the Charter Amendments.
(l) Conditions Precedent under Asset Contribution Agreements. The
conditions precedent under each Ramco Agreement (other than the Blue Ash
Agreement), the Closing Conditions Agreement and each RPS Contribution Agreement
shall have been satisfied or waived and, simultaneously with the Closing, the
transactions contemplated by such agreements shall have been consummated. If the
Operating Partnership does not exercise its right to terminate the Blue Ash
Agreement as set forth in Section 6.18, the conditions precedent under the Blue
Ash Agreement shall have been satisfied or waived and, simultaneously with the
Closing, the transaction contemplated by such agreement shall have been
consummated. The parties hereby acknowledge that the Operating Partnership has
terminated the Blue Ash Agreement pursuant to its terms and that the parties to
such agreement have no further obligations under such agreement.
(m) Offering of Operating Partnership Interests. The offer, sale and
issuance of the Operating Partnership Interests to members of the Ramco Group
shall have complied with Rule 506 promulgated under the Securities Act and
applicable blue sky and state securities laws and the Operating Partnership
shall have received all state securities law or blue sky permits and
authorizations necessary to carry out the issuance and sale of the Operating
Partnership Interests.
(n) Pledge Agreement. The Pledge Agreement, in the form attached
hereto as Exhibit I, shall have been entered into by each of the Persons
contemplated to be parties
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thereto, effective as of the Closing Date, such agreement shall be in full force
and effect and no cause for termination of such agreement shall exist.
(o) Tax Agreement. The Tax Agreement, in the form attached hereto as
Exhibit Q (the "TAX AGREEMENT"), shall have been entered into by the Trust and
RPS Mortgage, effective as of the Closing Date, such agreement shall be in full
force and effect and no cause for termination of such agreement shall exist.
3.2 Conditions to Obligations of Ramco, the Ramco Principals and the
Ramco Contributing Parties. The obligations of Ramco, the Ramco Principals and
the Ramco Contributing Parties to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by Ramco on behalf of each of such parties.
(a) Consent of Partners. The requisite consent to consummation of the
Contemplated Transactions of the partners of each of the Ramco Contributing
Parties set forth on Schedule 3.2 shall have been obtained and shall be in full
force and effect.
(b) Representations, Warranties and Agreements. (i) The
representations and warranties of the Trust set forth in this Agreement shall be
true and correct in all material respects as of the date of the Original
Agreement and as of the Closing Date as though made at such time, except for
such changes permitted or contemplated by the terms of this Agreement and except
insofar as any such representations and warranties relate solely to a particular
date or period, in which case they shall be true and correct in all material
respects on the Closing Date with respect to such date and period, (ii) the
Trust shall have performed and complied in all material respects with all
obligations, covenants and agreements contained in this Agreement required to be
performed and complied with by it at or prior to the Closing Date and (iii)
Ramco, the Ramco Principals and the Ramco Contributing Parties shall have
received certificates, dated the Closing Date, to that effect signed by the
Chairman, President or any Vice President of the Trust.
(c) Legal Opinion. The Operating Partnership shall have received an
opinion from Battle Fowler LLP, counsel to the Trust, dated the Closing Date, in
form and substance reasonably satisfactory to such parties; provided that (i)
Battle Fowler LLP may rely on an opinion of Wolf, Block, Schorr and Solis-Cohen
with respect to certain tax matters, and (ii) the Trust may deliver an opinion
of (A) Goodwin, Proctor and Hoar, special Massachusetts counsel to the Trust, as
to all matters of Massachusetts law, (B) Wolf, Block, Schorr and Solis-Cohen, as
to certain real estate matters, except that Wolf, Block, Schorr and Solis-Cohen
may rely on local counsel reasonably satisfactory to Ramco with respect to non-
New York, Pennsylvania, Massachusetts or Maryland law matters and (C) with
respect to issues relating to the Trust's purchase of reverse repurchase
obligations during 1994, Battle Fowler LLP shall deliver the opinion
substantially in the form set forth in Schedule 3.2(c) hereof.
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<PAGE> 20
(d) Cash Contribution. The Trust shall contribute to the Operating
Partnership RPS Cash in an amount equal to $68,000,000 (reduced by the Refinance
Loan Advance).
(e) Registration Rights Agreement. The Trust, for the benefit of each
member of the Ramco Group who will receive Operating Partnership Interests in
connection with the Contemplated Transactions shall have entered into a
Registration Rights Agreement (the "REGISTRATION RIGHTS AGREEMENT")
substantially in the form of Exhibit J, such agreement shall be in full force
and effect and no cause for termination of such agreement shall exist.
(f) Additional Documents. The Trust shall have delivered or caused to
be delivered to Ramco all other documents required to be delivered pursuant to
this Agreement.
(g) No Material Adverse Change. Since the date hereof nothing shall
have occurred which, individually or in the aggregate, has had, or is reasonably
likely to have, a Material Adverse Effect on the RPS Properties, taken as a
whole.
3.3 Conditions to the Trust's Obligations. The obligations of the
Trust to effect the Closing shall be subject to the satisfaction at or prior to
the Closing of the following conditions, any one or more of which may be waived
by the Trust:
(a) Representations, Warranties and Agreements. (i) The
representations and warranties of Ramco and the Ramco Principals set forth in
this Agreement shall be true and correct in all material respects as of the date
of the Original Agreement and as of the Closing Date as though made at such
time, except for such changes permitted or contemplated by the terms of this
Agreement and except insofar as any such representations and warranties relate
solely to a particular date or period, in which case they shall be true and
correct in all material respects on the Closing Date with respect to such date
and period, (ii) Ramco, the Ramco Principals and the Ramco Contributing Parties
shall have performed and complied in all material respects with all obligations,
covenants and agreements contained in this Agreement required to be performed
and complied with by them at or prior to the Closing Date and (iii) the Trust
shall have received certificates, dated the Closing Date, to that effect signed
by the President or any Vice President of Ramco and by each of the Ramco
Principals.
(b) Legal Opinion. The Trust shall have received an opinion from
Honigman Miller Schwartz and Cohn, counsel to Ramco, the Ramco Principals and
the Ramco Contributing Parties, dated the Closing Date, in form and substance
reasonably satisfactory to the Trust, except that Honigman Miller Schwartz and
Cohn may rely on local counsel reasonably satisfactory to the Trust with respect
to non-Michigan state law matters.
(c) Refinancing. (i) Simultaneously with the Closing, the debt listed
on Schedule 3.3 shall have been refinanced (the "REFINANCE LOAN") upon the
following terms: (1) the principal amount of the Refinance Loan (after taking
into account all borrowed transaction costs) shall not exceed $82,370,000, (2)
the term of the Refinance Loan shall be at
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least 10 years, (3) the Refinance Loan shall amortize principal ratably on a
schedule of not less than 25 years (except that until December 31, 1996 only
interest payments will be required), (4) the Refinance Loan shall be secured by
only the Ramco Properties listed on Schedule 3.3, (5) the Refinance Loan shall
bear interest with respect to $78,000,000 of principal at a fixed rate of 8.28%
per annum and with respect to $4,370,000 of principal at a fixed rate of 7.77%
per annum and (6) the Refinance Loan shall contain such other commercially
reasonable terms as determined in good faith by the Board of Trustees of the
Trust.
(ii) Simultaneously with the Closing, the mortgage debt
encumbering the West Oaks II Ramco Property shall have been refinanced (the
"WEST OAKS II LOAN") upon the following terms: (1) the principal amount of the
West Oaks II Loan (after taking into account all borrowed transaction costs)
shall not exceed $8,745,000, (2) the term of the West Oaks II Loan shall be at
least 10 years, (3) the West Oaks II Loan shall amortize principal ratably on a
schedule of not less than 20 years, (4) the West Oaks II Loan shall bear
interest at a fixed rate not to exceed 7.75% per annum, and (5) the West Oaks II
Loan shall contain such other commercially reasonable terms as determined in
good faith by the Board of Trustees of the Trust.
(iii) Simultaneously with the Closing, the Traveler's Life
Insurance Company mortgage debt encumbering the Spring Meadows Ramco Property
shall have been refinanced (the "SPRING MEADOWS LOAN") upon the following terms:
(1) the principal amount of the Spring Meadows Loan (after taking into account
all borrowed transaction costs) shall not exceed $7,650,000, (2) the term of the
Spring Meadows Loan shall be at least 10 years, (3) the Spring Meadows Loan
shall amortize principal ratably on a schedule of not less than 20 years, (4)
the Spring Meadows Loan shall bear interest at a fixed rate not to exceed 7.75%
per annum, and (5) the Spring Meadow Loan shall contain such other commercially
reasonable terms as determined in good faith by the Board of Trustees of the
Trust.
(iv) Simultaneously with the Closing, the Operating
Partnership shall have closed on a line of credit (the "CREDIT FACILITY") upon
the following terms: (1) the minimum amount available under the Credit Facility
shall not be less than $50,000,000, (2) the term of the Credit Facility shall be
at least 3 years, (3) the Credit Facility will bear interest at a floating rate
per annum not in excess of 175 basis points over LIBOR, (4) the commitment fee
under the Credit Facility shall not exceed .5% of the maximum amount available
under the Credit Facility, (5) the lender under the Credit Facility shall have
funded not more than $5,084,000 for the purpose of retiring mortgage debt on the
West Oaks II and Spring Meadows Ramco Properties, and (6) the Credit Facility
shall contain such other commercially reasonable terms as determined in good
faith by the Board of Trustees of the Trust.
(v) Prior to Closing, the mortgage debt encumbering the
Southfield Plaza Expansion Ramco Property shall have been refinanced on the
following terms: (1) the principal amount of the loan shall not be more than
$1,775,000, (2) the loan shall have a term
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<PAGE> 22
of 20 years from initial funding (subject to a lender call right at the end of
10 years), (3) the loan will bear interest during its first 10 years at a fixed
rate equal to 8% per annum and beginning in the 11th year will bear interest at
a rate that will change annually to .125% over the Moody's A Corporate Bond
Index Rate as of 5 business days prior to the date the rate adjusts, (4) the
loan will amortize principal over a 20 year amortization schedule and (5) the
loan shall contain such other commercially reasonable terms as determined in
good faith by the Board of Trustees, such loan shall be in full force and effect
and no cause for termination of such loan shall exist.
(d) Execution of Lock-Up Agreements. Ramco, each of the Ramco
Principals and each member of the Ramco Group who will receive Operating
Partnership Interests in connection with the Contemplated Transactions shall
have entered into agreements (the "LOCK-UP AGREEMENTS") effective as of the
Closing Date, substantially in the form of Exhibit K, restricting the transfer,
pledge, sale or exchange of Operating Partnership Interests for Shares for a
specified period following the Closing Date, such agreements shall be in full
force and effect and no cause for termination of such agreements shall exist.
(e) Execution of Non-Competition Agreements. The Trust and each of
the Ramco Principals shall have entered into non-competition agreements (the
"NON-COMPETITION AGREEMENTS") effective as of the Closing Date substantially in
the form of Exhibit L, such agreements shall be in full force and effect and no
cause for termination of any of such agreements shall exist.
(f) Intentionally Omitted.
(g) Ramco Excluded Assets Option; Assignment of Options on
Development Land. (i) The Trust and the parties set forth on Exhibit M shall
have entered into an option agreement with respect to the Ramco Excluded Assets
(the "EXCLUDED ASSET OPTION AGREEMENT") effective as of the Closing Date
substantially in the form of Exhibit M, such option agreement shall, subject to
the terms of such Agreement, be in full force and effect and no cause for
termination of such agreement shall exist.
(ii) The Trust, the Ramco Principals and the Ramco Contributing
Parties shall have consummated an assignment for the Trust of the options on the
Development Land set forth on Schedule 1.1(b), effective as of the Closing Date,
pursuant to an assignment agreement entered into as of the Closing Date, which
assignment agreement shall be in full force and effect and no cause for
termination of such agreement shall exist.
(h) Release. Concurrently with the consummation of the Contemplated
Transactions, Ramco, the Ramco Principals and the Ramco Contributing Parties and
their respective Affiliates shall be deemed, without any further action, to have
released each of the Trust (including its trustees, officers, agents and
Affiliates) and the Operating Partnership from (i) any and all obligations to
repay any indebtedness on the Ramco Properties due and owing to such Persons in
excess of $5,000,000 and (ii) any claims, demands or causes of
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action (whether individual, class or derivative in nature, at law or in equity)
arising directly or indirectly from the Trust's purchase of reverse repurchase
obligations during 1994. At the Closing, such Persons shall have executed and
delivered to the Trust and the Operating Partnership a release, in form and
substance satisfactory to the Trust, embodying the terms of this clause and
including, among other things, a covenant to not assert in any manner
(including, but not limited to, by way of defense, offset or counterclaim) any
matter purported to be released by the preceding sentence.
(i) Execution of North Towne Option Agreement. The Operating
Partnership and Ramco Lewis Alexis Associates shall have entered into an option
agreement with respect to the North Towne Shopping Center (the "NORTH TOWNE
OPTION AGREEMENT") effective as of the Closing Date, substantially in form of
Exhibit N, such agreement shall, subject to the terms of such Agreement, be in
full force and effect and no cause for termination of such agreement shall
exist.
(j) Procedures Letter. On the date of mailing of the Proxy Statement,
on the date of the Special Meeting and on the Closing Date, Deloitte & Touche
LLP shall have furnished to the Trust a letter or letters, dated the respective
date of delivery thereof, in form and substance satisfactory to the Trust, to
the effect set forth on Schedule 3.3(j).
(k) Additional Documents. Ramco, the Ramco Principals and the Ramco
Contributing Parties shall have delivered or caused to be delivered to the Trust
all other documents required to be delivered pursuant to this Agreement.
(l) No Material Adverse Change. Since the date hereof nothing shall
have occurred which, individually or in the aggregate, has had, or is reasonably
likely to have, a Material Adverse Effect on Ramco and the Ramco Properties
(taken as whole); provided, however, this condition shall be deemed satisfied if
Ramco can demonstrate, to the reasonable satisfaction of the Trust, that
annualized net operating income from Ramco and the Ramco Properties (computed on
a basis consistent with the basis upon which the financial statements referred
to in Section 4.5(a) were prepared and including applicable management and
leasing fees and a straightlining of common area maintenance and real estate tax
reimbursements and percentage rents), based on the operating results of such
properties during the last full month immediately preceding the Closing Date is
no less than net operating income from the Ramco Properties for the year ending
December 31, 1995 as set forth on the Updated Distribution Pro Forma minus
$250,000.
(m) Consent to Sale of Electricity. Ramco shall obtain all consents,
licenses or other approvals from the applicable utilities or Governmental bodies
that will permit the Operating Partnership (or any Subsidiary of sub-tier
partnerships that may hold title to the Ramco Properties) to resell, after the
Closing, electricity to the tenants at the Michigan Properties in accordance
with the past practices of the Ramco Group as they exist on the date hereof.
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<PAGE> 24
(n) Troy Towne Center. The Ramco Principals and Ramco Singer
Associates Limited Partnership shall have repaid to Fashion Bug, a tenant at
Troy Towne Center, all excess common area maintenance reimbursements previously
overpaid by such tenant and the Operating Partnership shall have received an
estoppel certificate from Fashion Bug, in form and substance reasonably
satisfactory to the Trust, stating that all such excess reimbursements have been
repaid and stating the minimum rent payable under such lease.
(o) SEC No Action Request; Spin-Off Transaction. The Trust shall have
received from the Division of Corporation Finance (the "DIVISION") of the
Commission a favorable response, in form and substance satisfactory to the
Trust, with respect to the Trust's no-action request letter dated November 2,
1995.
(p) Tel-Twelve Lease Estoppel. The Trust shall have received an
estoppel certificate from the tenant under the Tel-Twelve Lease, in form and
substance satisfactory to the Trust, to the effect that (i) the Tel-Twelve Lease
is in full force and effect and (ii) the tenant under such lease is open for
business and is paying rent.
4. REPRESENTATIONS AND WARRANTIES OF RAMCO AND THE RAMCO PRINCIPALS.
Ramco and the Ramco Principals, jointly and severally, represent and
warrant to, and agree with, the Trust as follows:
4.1 Organization of Ramco; Authorization. Ramco is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Michigan, with full corporate power and authority to execute and deliver this
Agreement and any other agreements contemplated hereby and to perform its
obligations hereunder and thereunder. Each Ramco Contributing Party is a general
or limited partnership duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization as set forth on Schedule 4.1,
with full partnership power and authority to execute and deliver this Agreement
and any other agreements contemplated hereby and to perform its obligations
hereunder and thereunder. The execution, delivery and performance of this
Agreement and the consummation of the Contemplated Transactions have been duly
authorized by all necessary corporate or partnership action (including, but not
limited to, approval by the Board of Directors and, if necessary, stockholders)
of Ramco and each Ramco Contributing Party, as the case may be, subject to
approval of the Contemplated Transactions by the partners of the Ramco
Contributing Parties listed on Schedule 3.2. This Agreement constitutes a valid
and binding obligation of each of Ramco, the Ramco Principals and the Ramco
Contributing Parties, enforceable against each of them in accordance with its
terms. Ramco has delivered to the Trust true and complete copies of its
Certificate of Incorporation and By-Laws, as amended and in effect on the date
hereof. Each Ramco Contributing Party has delivered to the Trust a true and
complete copy of its partnership agreement, as amended and in effect on the date
hereof. At the Closing, Ramco shall deliver to the Trust certified copies of the
resolutions adopted by its Board of Directors (and, if necessary, stockholders),
to authorize the
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execution, delivery and performance by Ramco of this Agreement and any other
agreements contemplated hereby to which Ramco is a party. Each Ramco
Contributing Party shall deliver to the Trust certified copies of the
resolutions adopted by the Board of Directors of each direct or indirect
corporate general partner of such partnership, where applicable, certified
copies of the consent of each general partner of such partnership and, if
obtained, certified copies of any resolutions adopted by the limited partners of
such partnership which are necessary to authorize the execution, delivery and
performance by such Ramco Contributing Party of this Agreement and any other
agreement contemplated hereby to which such Ramco Contributing Party is a party.
4.2 No Conflict as to the Ramco Group. Neither the execution and
delivery of this Agreement nor the consummation of any or all of the
Contemplated Transactions will (a) violate any provision of the certificate of
incorporation, by-laws, partnership agreement or other governing instrument of
Ramco, the Operating Partnership or any Ramco Contributing Party or (b) violate,
be in conflict with, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under any material contract
to which Ramco, the Operating Partnership, any Ramco Principal or any Ramco
Contributing Party is party or (c) violate any statute or law or any judgment,
decree, order, regulation or rule of any court or other Governmental Body
applicable to Ramco, the Operating Partnership, any Ramco Principal or any Ramco
Contributing Party.
4.3 Consents and Approvals of Governmental Authorities. No consent,
approval or authorization of, or declaration, filing or registration with, any
Governmental Body is required in connection with the execution, delivery and
performance of this Agreement or any of the Related Agreements by Ramco, the
Operating Partnership, any Ramco Principal or any Ramco Contributing Party or
the consummation of the Contemplated Transactions.
4.4 Other Consents. Except as set forth on Schedule 4.4, no consent
of any Person is necessary in connection with the execution, delivery and
performance of this Agreement or any of the Related Agreements by Ramco, the
Operating Partnership, any Ramco Principal or any Ramco Contributing Party or
the consummation of any of the Contemplated Transactions, including, but not
limited to, consents from limited partners, parties to leases or other
agreements or commitments. Subject to Section 6.3, as of November 15, 1995, the
requisite consent of each of the Persons set forth on Schedules 3.2 and 4.4
(other than JCP Realty, Inc.) has been obtained and are in full force and
effect, and the Trust has been provided with true and complete copies thereof.
4.5 Financial Statements. (a) Pursuant to Section 6.1(c) Ramco has
delivered to the Trust (i) a combined audited statement of income from the Ramco
Properties for the years ended December 31, 1992, 1993 and 1994, prepared in
accordance with Rule 314 of Registration S-X, together with the report thereon
of Deloitte & Touche LLP, (ii) audited balance sheets for Ramco as at December
31 in each of the years 1992 through 1994 and statements of income and cash flow
for each of the fiscal years then ended, together with
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the report thereon of Deloitte & Touche LLP, (iii) an unaudited combined
statement of income from the Ramco Properties for the three months ended March
31, 1995, including the notes thereto (iv) an unaudited balance sheet for Ramco
as at March 31, 1995 and an unaudited statement of income and cash flow for the
three months then ended, including in each case the notes thereto, and (v) any
updates of such financial statements needed to satisfy the requirements of Rule
3-12 of Regulation S-X of the Commission's rules in connection with the mailing
of the Proxy Statement. When and if these financial statements are delivered,
such financial statements will be true and correct in all material respects and
will fairly present the assets, liabilities and financial condition of Ramco and
the results of operations of the Ramco Properties and Ramco as at the respective
dates thereof and for the periods therein referred to, all in accordance with
generally accepted United States accounting principles consistently applied
throughout the periods involved, subject, in the case of unaudited interim
financial statements, to normal, recurring year-end audit adjustments.
(b) Pursuant to Section 6.1(c) Ramco will deliver to the Trust (i) an
unaudited pro forma combined balance sheet of the Operating Partnership as of
December 31, 1994 and March 31, 1995 (which balance sheet assumes that the
Contemplated Transactions occurred on such dates), (ii) unaudited pro forma
combined statements of income and cash flow for the Operating Partnership for
the year ended December 31, 1994 and for the three months ended March 31, 1995
(which statements assume that the Contemplated Transactions occurred on January
1, 1994 or 1995, as applicable), and (iii) any updates of such financial
statements needed to satisfy the requirements of Rule 3-12 of Regulation S-X of
the Commission's rules in connection with the mailing of the Proxy Statement.
When and if delivered, such financial statements will comply with the applicable
accounting requirements of the Exchange Act (including the rules and regulations
promulgated thereunder) and will be true and correct in all material respects,
except that no representation or warranty is made with respect to the results
from operations from the RPS Properties. When and if delivered, the pro forma
adjustments reflected in such financial statements will have been properly
applied to the historical amounts.
(c) Ramco has delivered to the Trust an adjusted unaudited statement
of pro forma funds from operations and estimated pro forma cash flows from
operating activities from the Operating Partnership for the 12-month period
ending December 31, 1995 which is based on pro forma net income from the
Operating Partnership for the nine months ending September 30, 1995, as adjusted
to reflect minimum rents from Qualifying Leases in place as of September 30,
1995 during the period from October 1, 1995 through December 31, 1995 and an
annualization of other income and operating expenses (the "UPDATED DISTRIBUTION
PRO FORMA"). The Updated Distribution Pro Forma is true and correct in all
material respects and the adjustments reflected in such financial statement will
have been properly applied to historical amounts, except that no representation
or warranty is made with respect to results from operations from the RPS
Properties.
(d) Pursuant to Section 1.11, Ramco shall deliver to the Trust the
Operating Partnership Closing Date Balance Sheet. The Operating Partnership
Closing Date Balance
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Sheet, when delivered, shall have been prepared in accordance with generally
accepted United States accounting principles, except for the absence of
footnotes thereto and normal, non-recurring year end adjustments, none of which
shall be material.
(e) Pursuant to Section 1.12, Ramco shall deliver to the Trust the
Merger Partnership Closing Date Balance Sheet. The Merger Partnership Closing
Date Balance Sheet, when delivered, shall have been prepared in accordance with
generally accepted United States accounting principles, except for the absence
of footnotes thereto and normal, non-recurring year end adjustments, none of
which shall be material.
(f) For purposes of this Section 4.5, "material" shall mean, with
respect to any individual item of income or expense, $35,000 and, with respect
to all items of income and expense, $300,000 in the aggregate.
4.6 Representations and Warranties Contained in the Ramco Agreements
and the Ramco Stock Contribution Agreement. All representations and warranties
made by the Ramco Contributing Parties under the Ramco Agreements and the Ramco
Stock Contribution Agreement are true and correct in all material respects, as
though made as of the date hereof and as a part of this Agreement, except
insofar as such representations relate solely to a particular date or period, in
which case they shall be true and correct in all material respects with respect
to such date and period. No representation or warranty of any Ramco Principal or
any Ramco Contributing Party in the Ramco Agreements relating to the Direct
Transfer Ramco Properties contains any untrue statements of material fact, or
omits to state any material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not false or misleading.
4.7 Ramco Properties. (a) Except for the Ramco Excluded Assets set
forth on Schedule 4.7 and a 50% interest in 28th Street Kentwood Associates and
a 50% interest in S-12 Associates, the Ramco Properties set forth on Schedule 1
constitute all of the real estate related assets and properties of Ramco, the
Ramco Principals and the Ramco Contributing Parties. Such properties and assets
constitute all the real estate properties and assets that relate, directly or
indirectly, to the real estate businesses conducted by Ramco, the Ramco
Principals and their respective Affiliates as of the date hereof. As of the date
of the Original Agreement, Ramco and the Ramco Principals had no reason to
believe that the following tenants at the Ramco Properties would reject their
respective leases pursuant to their bankruptcy proceedings; F&M Distributors at
Eastridge Commons; and Piece Goods Shop at Troy Towne Center; as of the date of
the Original Agreement such tenants were open for business, paying rent and have
full inventories on their respective shelves. Following any refinancing of the
debt at West Oaks I as contemplated by Section 3.3(c), Service Merchandise and
K-Mart, tenants at West Oaks I, will, subject to earlier termination of their
respective leases, continue to be obligated to make debt service reimbursements
to the landlord in an amount not less than $127,000 per annum.
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(b) With respect to each lease that was in place at the Ramco
Properties as of December 31, 1994 or has rents or reimbursements thereunder
reflected, directly or indirectly, on the Updated Distribution Pro Forma
(collectively, the "1994 Leases"), as of December 1, 1995 and except as set
forth on Schedule 4.7(b), (i) each of the Magic Page Leases is valid and
subsisting and in full force and effect as against the applicable Ramco
Properties, and, to Ramco's knowledge, as against the tenant, and has not been
amended, modified or supplemented, (ii) the tenant under each of the Magic Page
Leases is in actual possession of the premises leased thereunder, (iii) no
tenant under any Magic Page Lease is more than 30 days in arrears in the payment
of any amount due under such lease, (iv) none of Ramco or any Ramco Contributing
Party has received any written notice from any tenant under any Magic Page Lease
of its intention to vacate, (v) none of Ramco or any Ramco Contributing Party
has collected payment of rent under any Magic Page Lease (other than security
deposits) accruing for a period which is more than one month in advance, (vi) no
notice of default has been sent or received by the landlord under any Magic Page
Lease which remains uncured, no default has occurred under any Magic Page Lease
and, to Ramco's knowledge, no event has occurred and is continuing which, with
notice or lapse of time or both, would constitute a default under any Magic Page
Lease, (vii) no tenant under any of the Magic Page Leases is entitled to any
concessions, allowances, abatements, set-offs, rebates or refunds (except as set
forth on the Updated Distribution Pro Forma), (viii) no tenant under any of the
Magic Page Leases has asserted any claim which is likely to affect the
collection of rent from such tenant, (ix) the landlord under each Magic Page
Lease has fulfilled all of its obligations thereunder in respect of tenant
improvements and capital expenditures and (x) none of the tenants under the
Magic Page Leases are the subject of a bankruptcy proceeding under the United
States Bankruptcy Code.
4.8 No Undisclosed Liabilities. Ramco does not have any liabilities
or obligations of any nature (absolute, accrued, contingent or otherwise) of the
type required to be reflected or disclosed in a balance sheet (or the notes
thereto) prepared in accordance with generally accepted United States accounting
principles that were not fully reflected or reserved against in the Ramco
Balance Sheets, except for liabilities and obligations incurred in the ordinary
course of business and consistent with past practice since the respective dates
thereof or liabilities or obligations contemplated by this Agreement and the
Related Agreements; the reserves reflected in the Ramco Balance Sheets are
adequate, appropriate and reasonable.
4.9 Litigation. Except as set forth on Schedule 4.9, there is no
action, suit, inquiry, proceeding or investigation by or before any court or
Governmental Body pending or, to the best knowledge of Ramco and the Ramco
Principals, threatened against or involving Ramco, the Operating Partnership,
any Ramco Principal or any Ramco Contributing Party which questions or
challenges the validity of this Agreement or the Related Agreements or any
action taken or to be taken pursuant to this Agreement or the Related Agreements
or in connection with the Contemplated Transactions, nor is there any valid
basis for any such action, proceeding or investigation. Except as set forth on
Schedule 4.9, none of Ramco, the Operating Partnership, any Ramco Principal or
any Ramco Contributing Party is in default under or in violation of any
agreement, commitment or restriction to which it is a party or by
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which it is bound. Except as set forth on Schedule 4.9, none of Ramco, the
Operating Partnership, any Ramco Principal or any Ramco Contributing Party is a
named party to any action or is subject to any judgment, order or decree that
may have an adverse effect on his or its business practices or on its ability to
acquire any property or conduct any business.
4.10 No Material Adverse Change. With respect to each Ramco Property,
since the date of the most recent rent roll relating to such property included
in the Ramco Agreement relating to such property, and, with respect to Ramco,
since January 1, 1994, (a) there has not been any material adverse change in the
business, results of operations, properties, assets or financial condition of
the Ramco Properties (taken as a whole) or Ramco, respectively, or, to the best
knowledge of Ramco and the Ramco Principals, any event, condition or contingency
that is likely to result in such a material adverse change and (b) none of
Ramco, the Operating Partnership, any Ramco Principal or any Ramco Contributing
Party has taken any action which, if taken after the date hereof, would violate
Section 6.13 hereof.
4.11 Compliance with Law. The operations of Ramco, the Operating
Partnership and each of the Ramco Contributing Parties have been conducted in
accordance with all applicable laws, regulations and other requirements of all
Governmental Bodies, including, without limitation, all such laws, regulations
and requirements relating to antitrust, consumer protection, currency exchange,
equal opportunity, health, occupational safety, pension, securities and
trading-with-the-enemy matters, except for such violations which, individually
or in the aggregate, do not, and following the Closing will not, have a Material
Adverse Effect on the Ramco Contribution Assets. None of Ramco, the Operating
Partnership or any Ramco Contributing Party has received any notification of any
asserted present or past failure by it to comply with any such laws, rules or
regulations. Ramco, the Operating Partnership and each of the Ramco Contributing
Parties have all material licenses, permits, orders or approvals from
Governmental Bodies required for the conduct of their respective businesses, and
are not in violation of any such license, permit, order or approval. All such
licenses, permits, orders and approvals are in full force and effect, and no
suspension or cancellation thereof has been threatened.
4.12 No Brokers or Finders. Except as set forth on Schedule 4.12, no
agent, broker, finder or investment or commercial banker, or other Person or
firms engaged by or acting on behalf of Ramco, the Operating Partnership, any
Ramco Principal or any Ramco Contributing Party or any of their respective
Affiliates in connection with the negotiation, execution or performance of this
Agreement or the consummation of the Contemplated Transactions, is or will be
entitled to any broker's or finder's or similar fees or other commissions as a
result of the consummation of the Contemplated Transactions.
4.13 Books and Records. The minute books, stock record books and
other records of Ramco, the Operating Partnership and of each Ramco Contributing
Party, all of which have been or will be made available to the Trust, are
complete and correct and have been maintained in accordance with sound business
practices.
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4.14 Accredited Investor Status; Compliance with Securities Laws. (a)
Ramco will offer the Operating Partnership Interests only to the offerees listed
on Schedule 4.14. Schedule 4.14 contains a true, correct and complete list of
all direct and indirect owners of such offerees.
(b) Ramco will receive questionnaires or subscription agreements from
each Person to which or whom Operating Partnership Interests will be offered
pursuant to the Contemplated Transactions and will receive on behalf of the
Operating Partnership a written representation from each such offeree to the
effect that such offeree (i) will be acquiring the Operating Partnership
Interests for the purpose of investment only and not with a view to distribution
thereof in violation of the Securities Act, (ii) will have such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of acquiring the Operating Partnership Interests and will
be able to bear the economic risk of such investment, (iii) is an "accredited
investor" within the meaning of Rule 501(a) of Regulation D under the Securities
Act, (iv) except as set forth on Schedule 4.14(b), is not domiciled in nor is a
resident of California (nor is any direct or indirect owner of any such member
domiciled in or a resident of California), (v) will have access to, or been
furnished with, all information about the Operating Partnership Interests as he
or it has deemed necessary and (vi) is not a "benefit plan investor" within the
meaning of 29 C.F.R. Section 2510.3-101.
(c) The offer, sale and issuance of the Operating Partnership
Interests pursuant to the Contemplated Transactions will constitute transactions
exempt from the registration and prospectus delivery requirements under the
Securities Act or any applicable securities or blue sky laws of any state or
other jurisdiction.
(d) The offer, sale and issuance of the Operating Partnership
Interests pursuant to the Contemplated Transactions will be exempt from the
qualification requirements under Section 25120 of the California Corporations
Code.
(e) Pursuant to Section 6.2, Ramco will cause to be prepared a
Private Placement Memorandum (the "MEMORANDUM"), which will contain all
information required to be furnished to offerees of the Operating Partnership
Interests under Rule 506 promulgated under the Securities Act. The Memorandum
will not contain, on the date it is delivered to any offeree of the Operating
Partnership Interests and on the Closing Date, any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that no representations or warranties are made with
respect to any statements or omissions made in reliance upon and in conformity
with written information furnished to Ramco by the Trust with respect to the
Trust expressly for use in the Memorandum.
(f) Ramco shall make no representations regarding the offering of the
Operating Partnership Interests except as set forth in the Memorandum.
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4.15 Proxy Statement. None of the information supplied or to be
supplied by Ramco, any Ramco Principal or any of their respective Affiliates,
directors, officers, employees, agents or representatives for inclusion in the
Proxy Statement or any other document filed or to be filed with the Commission
or any Governmental Body in connection with the Contemplated Transactions will,
at the time it is provided, be false or misleading with respect to any material
fact, or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances in which they were made, not
misleading. On each of the date of mailing of the Proxy Statement, the date of
the special meeting of shareholders of the Trust referred to in the Proxy
Statement and the Closing Date, the Trust shall have received a certificate,
dated such date, from the President or any Vice President of Ramco and each of
the Ramco Principals confirming that none of the information supplied by Ramco,
any Ramco Principal or any of their respective Affiliates, directors, officers,
employees, agents or representatives for inclusion in the Proxy Statement is, as
of such date, false or misleading with respect to any material fact, or omits to
state any material fact necessary in order to make the statements therein, in
light of the circumstances in which they were made, not misleading.
4.16 Employee Benefit Plans; Compliance with ERISA. (a) Except as set
forth in Schedule 4.16(a), Ramco (i) does not maintain or contribute to or have
any obligation with respect to, and none of the employees of Ramco is covered
by, any Plans (the "RAMCO PLANS"), or (ii) is not a party to any contract for
the employment of any employee or any other person who renders services to it.
None of the Ramco Plans is, and Ramco has never maintained or had an obligation
to contribute to (i) a plan subject to Section 412 of the Code or Title IV of
ERISA, (ii) a Multiemployer Plan, (iii) a "multiple employer plan," as defined
in ERISA or the Code, or (iv) a funded welfare benefit plan, as defined in
Section 419 of the Code. Ramco does not have any agreement or commitment to
create any additional Ramco Plan, enter into any additional employment agreement
or to modify or change any existing Ramco Plan or employment agreement.
(b) With respect to each Ramco Plan, Ramco has delivered or prior to
Closing will cause to be delivered to the Trust true, correct and complete
copies of (i) all documents which comprise the most current version of each of
such Ramco Plan, and (ii) with respect to each Ramco Plan that is an "employee
benefit plan," as defined in Section 3(3) of ERISA, (A) the most recent Annual
Report (Form 5500 Series) and accompanying schedules for each of the Ramco Plans
for which such a report is required, (B) the most current summary plan
description (and any summary of material modifications), (C) the most recent
certified financial statement for each of the Ramco Plans for which such a
statement is required or was prepared, and (D) for each Ramco Plan intended to
be "qualified" within the meaning of Section 401(a) of the Code, all IRS
determination letters issued with respect to such Ramco Plan. Except as set
forth on Schedule 4.16(b), none of the Ramco Plans has been or will be amended
prior to the Closing Date.
(c) Ramco has performed and complied in all material respects with
all of its obligations under and with respect to the Ramco Plans and each of the
Ramco Plans has, at
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all times, in form, operation and administration complied in all material
respects with its terms, and, where applicable, the requirements of all
applicable laws, and there are no accrued but unpaid contributions to any of the
Ramco Plans. Each Ramco Plan which is intended to be "qualified" within the
meaning of Section 401(a) of the Code has been determined by the IRS to be so
qualified and nothing has occurred which reasonably could be expected to
adversely affect such qualified status.
(d) Neither Ramco nor to the best knowledge of Ramco and the Ramco
Principals, any other "disqualified person" or "party in interest," as defined
in Section 4975 of the Code and Section 3(14) of ERISA, respectively, has
engaged in any "prohibited transaction," as defined in Section 4975 of the Code
or Section 406 of ERISA, with respect to any Ramco Plan, and there have not been
any fiduciary violations under ERISA which could subject Ramco (or any officer,
director or employee thereof) to any material penalty or tax under Section
502(i) of ERISA or Sections 4971 and 4975 of the Code. None of the Ramco
Contribution Assets or the assets of Ramco constitute "plan assets" of one or
more employee benefit plans within the meaning of 29 C.F.R. Section 2510.3-101,
and Ramco is not a "disqualified person" or a "party in interest," with respect
to any employee benefit plan other than the Ramco Plans.
(e) Except as set forth in Schedule 4.16(e), with respect to any
Ramco Plan (i) no filing, application or other matter is pending with the IRS,
the Pension Benefit Guaranty Corporation, the United States Department of Labor
or any other Governmental Body, (ii) there is no action, suit or claim pending
(nor, to the best knowledge of Ramco and the Ramco Principals, any basis for
such a claim), other than routine claims for benefits, and (iii) there are no
outstanding liabilities for taxes, penalties or fees.
(f) Ramco has not incurred any liability or taken any action, and to
the best knowledge of Ramco and the Ramco Principals no action or event has
occurred, that could cause Ramco to incur, or to cause any of the Ramco
Contribution Assets to become subject to any liability for, (i) any material
liability under the continuation coverage requirements of Section 4980B of the
Code (or any predecessor provision) ("COBRA"), or (ii) any liability (A) under
Section 412 of the Code or Title IV of ERISA with respect to any
"single-employer plan" (as defined in Section 4001(a)(15) of ERISA), (B) on
account of a partial or complete withdrawal (as defined in Sections 4203 and
4205 of ERISA, respectively) with respect to any Multiemployer Plan, or (C) on
account of unpaid contributions to any Multiemployer Plan. Except as set forth
on Schedule 4.16(f), Ramco does not have any obligation to provide health,
medical, life or other non-pension benefits to retired or other former
employees, except as specifically required by COBRA.
(g) Except as set forth on Schedule 4.16(g), neither the execution
and delivery of this Agreement nor the consummation of any or all of the
Contemplated Transactions will (i) entitle any current or former employee of
Ramco to severance pay, unemployment compensation or any similar payment, or
(ii) accelerate the time of payment or
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vesting or increase the amount of any compensation due to any such employee or
former employee.
(h) For purposes of this Section 4.16, all references to Ramco shall
be deemed to include its ERISA Affiliates.
4.17 Employees; Labor Relations. (a) Ramco has previously delivered
to the Trust a letter which accurately sets forth the names, positions and
current salaries of all employees of Ramco which during the twelve months ending
December 31, 1994 earned in excess of $50,000 and who are to be employed as of
the Closing by Ramco or in connection with the operation, management and
maintenance of the Ramco Properties, or who will become employees of the Trust
or the Operating Partnership as of the Closing.
(b) Ramco has paid in full to its employees all wages, salaries,
commissions, bonuses and other direct compensation for all services performed by
them, other than amounts that have not yet become payable in accordance with
Ramco's customary practices. Ramco is not liable for any severance pay or other
payments on account of termination of any former employee. Except as set forth
on Schedule 4.17(b), Ramco is not a party to or otherwise been bound by any
collective bargaining agreement, and none of its employees are covered by any
collective bargaining agreement. (i) Ramco is in material compliance with all
applicable laws respecting employment and employment practices, terms and
conditions of employment and wages and hours, and Ramco is not and has not been
engaged in any unfair labor practice, (ii) there is no unfair labor practice
complaint against Ramco pending before the National Labor Relations Board, (iii)
there is no labor strike, dispute, slowdown or stoppage actually pending or
threatened against or affecting Ramco, (iv) no representation question exists
respecting the employees of Ramco and (v) no collective bargaining agreement
relating to any of the employees of Ramco is currently being negotiated.
4.18 Organization of the Operating Partnership. The Operating
Partnership is a limited partnership, duly organized, validly existing and in
good standing under the laws of the State of Delaware. The Operating Partnership
has full partnership power and authority to own its properties and to engage in
its business as presently conducted or contemplated and to execute this
Agreement and any other agreements contemplated hereby, and to perform its
obligations hereunder and thereunder. The Operating Partnership is, or will be
prior to the Closing, duly qualified and in good standing as a foreign limited
partnership under the laws of each jurisdiction in which the property to be
owned, leased or operated by it or the nature of the business to be conducted by
it makes such qualification necessary, except in such jurisdictions where the
failure to be so duly qualified or in good standing would not, individually or
in the aggregate, have a Material Adverse Effect on the Operating Partnership or
its properties and assets. The execution, delivery and performance of this
Agreement has been duly authorized by all necessary partnership action
(including, but not limited to, approval by Ramco REIT, Inc., in its capacity as
general partner of the Operating Partnership) of the Operating Partnership and
this Agreement constitutes a valid and binding obligation of the Operating
Partnership, enforceable against it in accordance with its terms.
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4.19 Tax Status of Operating Partnership. On the Closing Date, the
Operating Partnership will be treated as a limited partnership for Federal
income tax purposes.
4.20 General and Administrative Expenses. The base salaries, bonuses,
employee benefits and reimbursable business expenses referenced in the Ramco
Principal Employment Agreements have been included in the estimate of general
and administrative expenses of the Operating Partnership included in the Updated
Distribution Pro Forma.
4.21 Michigan Single Business Tax. Following the Closing, to the
extent that any Michigan Single Business Tax is chargeable to any of the
Michigan Properties, the Operating Partnership shall have the right to pass the
entire amount of such tax through to the tenants at such properties as a
required tenant reimbursement, except that no representation or warranty is made
to the extent that any future change in applicable law would prohibit the pass
through to tenants of such tax.
5. REPRESENTATIONS AND WARRANTIES OF THE TRUST.
The Trust represents and warrants to, and agrees with, Ramco and the
Ramco Principals as follows:
5.1 Organization of the Trust; Authorization. The Trust is a
Massachusetts business trust duly organized, validly existing and in good
standing under the laws of the State of Massachusetts, with full power and
authority to execute and deliver this Agreement and any other agreements
contemplated hereby and, subject to obtaining the consent of its shareholders,
to perform its obligations hereunder and thereunder. The execution, delivery and
performance by the Trust of this Agreement and the consummation of the
Contemplated Transactions have been duly authorized by the Board of Trustees and
by all other necessary action, subject to the approval of the Contemplated
Transactions by the Trust's shareholders. This Agreement constitutes a valid and
binding obligation of the Trust, enforceable against it in accordance with its
terms. The Trust has delivered to Ramco true and complete copies of its
Declaration of Trust and By-Laws, as amended and in effect on the date hereof.
At the Closing, the Trust shall deliver to Ramco certified copies of the
resolutions adopted by its Board of Trustees and shareholders to authorize the
execution, delivery and performance of this Agreement and any other agreements
contemplated hereby.
5.2 Capitalization of the Trust and its Subsidiaries. (a) The
authorized capital stock of the Trust consists of 600,000,000 Shares of which,
as of March 15, 1995, 28,492,421 Shares were issued and outstanding. All
outstanding Shares of the Trust have been validly issued, and are fully paid and
nonassessable. As of March 15, 1995, 1,900,000 Shares were reserved for issuance
upon the exercise of outstanding stock options issued pursuant to the Employee
Plan and the Trustee Plan (the "OPTIONS"). Schedule 5.2(a) sets forth, as of
March 15, 1995, next to the name of each Option holder, the number of Options
held by such person, the exercise price of the Options and the expiration date
of such Options. Except as set forth above and except for the Share Purchase
Rights (the "RIGHTS") issued
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pursuant to the Rights Agreement, dated as of December 6, 1989 between the Trust
and American Stock Transfer & Trust Company, N.A., as Rights Agent, as amended
from time to time, and except as a result of the exercise of Options outstanding
as of March 15, 1995, there are no outstanding subscriptions, options, rights,
warrants, convertible securities or other agreements or calls, demands or
commitments of any kind relating to the issuance, sale or transfer of the
Shares. The Contemplated Transactions will not cause the Rights to be
exercisable.
(b) The Trust does not own any equity securities of, and has no
direct or indirect ownership interest in, any Person other than the Subsidiaries
set forth on Schedule 5.2(b). The Trust owns all of the issued and outstanding
shares of capital stock of each such Subsidiary.
5.3 No Conflict as to the Trust. Assuming approval of the
Contemplated Transactions by the Trust's shareholders, neither the execution and
delivery of this Agreement nor the performance of the Trust's obligations
hereunder will (a) violate any provision of the Declaration of Trust or By-Laws
of the Trust, (b) violate, be in conflict with, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under any material contract to which the Trust is party or (c) violate any
statute or law or any judgment, decree, order, regulation or rule of any court
or other Governmental Body applicable to the Trust, provided (as to clause (c))
that the appropriate regulatory approvals contemplated by Section 5.4 are
obtained.
5.4 Consents and Approvals of Governmental Authorities. Except for
the filing with, and clearance by, the Commission of the Proxy Statement and the
no-action request referred to in Section 3.3(o), no consent, approval or
authorization of, or declaration, filing or registration with, any Governmental
Body is required in connection with the execution, delivery and performance of
this Agreement or the consummation of the Contemplated Transactions.
5.5 Other Consents. Assuming approval of the Contemplated
Transactions by the Trust's shareholders, and except as set forth on Schedule
5.5, no consent of any Person is necessary in connection with the Trust's
execution, delivery and performance of this Agreement or any of the Related
Agreements or the consummation of any of the Contemplated Transactions,
including, but not limited to, parties to leases or other agreements or
commitments.
5.6 Reports and Financial Statements. The Trust has heretofore made
available to Ramco true and complete copies of all reports, registration
statements, definitive proxy statements and other documents (in each case
together with all amendments thereto) filed by the Trust with the Commission
since January 1, 1993 (such reports, registration statements, definitive proxy
statements and other documents, together with any amendments thereto,
collectively referred to as the "RPS COMMISSION FILINGS"). The RPS Commission
Filings constitute all of the documents (other than preliminary material) that
the Trust was
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required to file with the Commission since such date. As of their respective
dates, each of the RPS Commission Filings complied in all material respects with
the applicable requirements of the Securities Act, the Exchange Act and the
rules and regulations under each such Act, and none of the RPS Commission
Filings contained as of such date any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading (except that no representation or warranty is made with
respect to any information regarding Ramco, the Operating Partnership, any Ramco
Principal or any Ramco Contributing Party or any of their respective Affiliates,
directors, officers or employees included in the RPS Commission Filings which
was furnished by any of them expressly for use therein). When filed with the
Commission, the financial statements (the "RPS FINANCIAL STATEMENTS") included
in the RPS Commission Filings complied as to form in all material respects with
the applicable rules and regulations of the Commission and were prepared in
accordance with generally accepted United States accounting principles
consistently applied (except as may be indicated therein or in the notes or
schedules thereto), and such financial statements fairly present the
consolidated financial position of the Trust and its consolidated Subsidiaries
as at the dates thereof and the consolidated results of their operations and
their consolidated cash flows for the periods then ended, subject, in the case
of the unaudited interim financial statements, to normal, recurring year-end
audit adjustments. Except as and to the extent reflected or reserved against in
the RPS Financial Statements included in the Trust's Annual Report on Form 10-K
for the year ended December 31, 1994 or as disclosed therein and except as set
forth on Schedule 5.6, neither the Trust nor any of the Trust's Subsidiaries had
as of such date any liability or obligation of any kind required to be reflected
on a balance sheet (including in a footnote) of the Trust and its consolidated
Subsidiaries prepared in accordance with the applicable rules and regulations of
the Commission which was material to the business, assets, results of operations
or financial condition of the Trust and its Subsidiaries, taken as a whole.
5.7 Litigation. Except as set forth on Schedule 5.7, there is no
action, suit, inquiry, proceeding or investigation by or before any court or
Governmental Body pending or, to the best knowledge of the Trust, threatened
against or involving the Trust or which questions or challenges the validity of
this Agreement or any action taken or to be taken pursuant to this Agreement or
in connection with the Contemplated Transactions. Except as set forth on
Schedule 5.7, the Trust is not in default under or in violation of any
agreement, commitment or restriction to which it is a party or by which it is
bound. Except as set forth on Schedule 5.7, the Trust is not subject to any
judgment, order or decree that may have an adverse effect on its business
practices or on its ability to acquire any property or conduct any business in
any part of the world.
5.8 Taxes. Since the election was made by the Trust to be taxed as a
real estate investment trust in 1988 through and including the Closing Date, the
Trust has satisfied the requirements contained in Section 856 of the Code and
the regulations thereunder to be treated as a real estate investment trust and
has made all distributions required by Section 857(a)(1) of the Code.
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5.9 Material Contracts. Schedule 5.9 sets forth, as of the date
hereof, (a) all loan agreements, mortgages, deeds of trust and related documents
to which the Trust is a party or by which it is bound and (b) all other
contracts to which the Trust is a party or by which it is bound that require the
Trust to make payments in excess of $100,000 in any fiscal year. Each such
contract is in full force and effect and is a valid and binding obligation of
the Trust. There does not exist under any such contract any event of default or
event which, after notice or lapse of time or both, would constitute a default
thereunder on the part of the Trust.
5.10 No Material Adverse Change. Since December 31, 1994, except as
disclosed in the RPS Commission Filings with the Commission prior to the date
hereof and except as set forth on Schedule 5.10, (a) there has not been any
material adverse change in the business, results of operations, properties,
assets or financial condition of the Trust or any event, condition or
contingency that is likely to result in such a material adverse change and (b)
the Trust has not taken any action which, if taken after the date hereof, would
violate Section 6.13 hereof.
5.11 Compliance with Law. Except as set forth on Schedule 5.11, the
operations of the Trust have been conducted in accordance with all applicable
laws, regulations and other requirements of all Governmental Bodies, including,
without limitation, all such laws, regulations and requirements relating to
antitrust, consumer protection, currency exchange, equal opportunity, health,
occupational safety, pension, securities and trading-with-the-enemy matters,
except for such violations which, individually or in the aggregate, do not, and
following the Closing will not, have a Material Adverse Effect on the Trust
Contribution Assets. The Trust has not received any notification of any asserted
present or past failure by it to comply with any such laws, rules or
regulations. The Trust has all material licenses, permits, orders or approvals
from Governmental Bodies required for the conduct of its businesses, and is not
in violation of any such license, permit, order or approval. All such licenses,
permits, orders and approvals are in full force and effect, and no suspension or
cancellation thereof has been threatened.
5.12 Books and Records. The minute books, stock record books and
other records of the Trust, all of which have been or will be made available to
Ramco, are complete and correct and have been maintained in accordance with
sound business practices.
5.13 No Brokers or Finders. No agent, broker, finder or investment or
commercial banker, or other Person or firms engaged by or acting on behalf of
the Trust in connection with the negotiation, execution or performance of this
Agreement or the consummation of the Contemplated Transactions, is or will be
entitled to any broker's or finder's or similar fees or other commissions as a
result of the consummation of the Contemplated Transactions, except for Dean
Witter.
5.14 Employee Benefit Plans; Compliance with ERISA. (a) Except as set
forth in Schedule 5.14(a), the Trust (i) does not maintain or contribute to or
have any
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obligation with respect to, and none of the employees of the Trust are covered
by, any Plans (the "RPS PLANS"), and (ii) is not a party to any contract for the
employment of any employee or any other person who renders services to either of
them. None of the RPS Plans is, and the Trust has never maintained or had an
obligation to contribute to (i) a plan subject to Section 412 of the Code or
Title IV of ERISA, (ii) a Multiemployer Plan, (iii) a "multiple employer plan,"
as defined in ERISA or the Code, or (iv) a funded welfare benefit plan, as
defined in Section 419 of the Code. Except as set forth in Schedule 5.14(a), the
Trust has no agreement or commitment to create any additional RPS Plan, enter
into any additional employment agreement or to modify or change any existing RPS
Plan or employment agreement.
(b) With respect to each RPS Plan, the Trust has delivered or prior
to Closing will cause to be delivered to Ramco true, correct and complete copies
of (i) all documents which comprise the most current version of each of such RPS
Plan, and (ii) with respect to each RPS Plan that is an "employee benefit plan,"
as defined in Section 3(3) of ERISA, (A) the most recent Annual Report (Form
5500 Series) and accompanying schedules for each of the RPS Plans for which such
a report is required, (B) the most current summary plan description (and any
summary of material modifications), (C) the most recent certified financial
statement for each of the RPS Plans for which such a statement is required or
was prepared, and (D) for each RPS Plan intended to be "qualified" within the
meaning of Section 401(a) of the Code, all IRS determination letters issued with
respect to such RPS Plan. Except as set forth in Schedule 1.9 or Schedule
5.14(b), none of the Plans has been or will be amended prior to the Closing
Date.
(c) The Trust has performed and complied in all material respects
with all of its obligations under and with respect to the RPS Plans and each of
the RPS Plans has, at all times, in form, operation and administration complied
in all material respects with its terms, and, where applicable, the requirements
of all applicable laws, and there are no accrued but unpaid contributions to any
of the RPS Plans. Each RPS Plan which is intended to be "qualified" within the
meaning of Section 401(a) of the Code has been determined by the IRS to be so
qualified and nothing has occurred which reasonably could be expected to
adversely affect such qualified status.
(d) Neither the Trust nor to the best knowledge of the Trust any
other "disqualified person" or "party in interest," as defined in Section 4975
of the Code and Section 3(14) of ERISA, respectively, has engaged in any
"prohibited transaction," as defined in Section 4975 of the Code or Section 406
of ERISA, with respect to any RPS Plan, and there have not been any fiduciary
violations under ERISA which could subject the Trust (or any officer, director
or employee thereof) to any material penalty or tax under Section 502(i) of
ERISA or Sections 4971 and 4975 of the Code. None of the Trust Contribution
Assets or the assets of the Trust constitute "plan assets" of one or more
employee benefit plans within the meaning of 29 C.F.R. Section 2510.3-101, and
the Trust is not a "disqualified person" or a "party in interest," with respect
to any employee benefit plan other than the RPS Plans.
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(e) Except as set forth in Schedule 5.14(e), with respect to any RPS
Plan (i) no filing, application or other matter is pending with the Internal
Revenue Service, the Pension Benefit Guaranty Corporation, the United States
Department of Labor or any other Governmental Body, (ii) there is no action,
suit or claim pending (nor, to the best knowledge of the Trust, any basis for
such a claim), other than routine claims for benefits, and (iii) there are no
outstanding liabilities for taxes, penalties or fees.
(f) The Trust has not incurred any liability or taken any action, and
to the best knowledge of the Trust no action or event has occurred, that could
cause the Trust to incur (i) any material liability under COBRA, or (ii) any
liability (A) under Section 412 of the Code or Title IV of ERISA with respect to
any "single-employer plan" (as defined in Section 4001(a)(15) of ERISA), (B) on
account of a partial or complete withdrawal (as defined in Sections 4203 and
4205 of ERISA, respectively) with respect to any Multiemployer Plan, or (C) on
account of unpaid contributions to any Multiemployer Plan. Except as set forth
in Schedule 5.14(f), The Trust does not have any obligation to provide health,
medical, life or other non-pension benefits to retired or other former
employees, except as specifically required by COBRA.
(g) Except as set forth in Schedule 5.14(g), neither the execution
and delivery of this Agreement nor the consummation of any or all of the
Contemplated Transactions will (i) entitle any current or former employee of the
Trust to severance pay, unemployment compensation or any similar payment, or
(ii) accelerate the time of payment or vesting or increase the amount of any
compensation due to any such employee or former employee.
(h) For purposes of this Section 5.14, all references to the Trust
shall be deemed to include its ERISA Affiliates.
5.15 Employees; Labor Relations. The Trust has paid in full to its
employees all wages, salaries, commissions, bonuses and other direct
compensation for all services performed by them, other than amounts that have
not yet become payable in accordance with the Trust's customary practices.
Except as set forth on Schedule 5.15, the Trust is not liable for any severance
pay or other payments on account of termination of any former employee and is
not party to or bound by any contract or other commitment providing for
severance pay or other payments upon termination of any current employee. Except
as set forth on Schedule 5.15, the Trust is not a party to or otherwise been
bound by any collective bargaining agreement, and none of its employees are
covered by any collective bargaining agreement. (i) The Trust is in material
compliance with all applicable laws respecting employment and employment
practices, terms and conditions of employment and wages and hours, and the Trust
is not and has not been engaged in any unfair labor practice, (ii) there is no
unfair labor practice complaint against the Trust pending before the National
Labor Relations Board, (iii) there is no labor strike, dispute, slowdown or
stoppage actually pending or threatened against or affecting the Trust, (iv) no
representation question exists respecting
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the employees of the Trust and (v) no collective bargaining agreement relating
to any of the employees of the Trust is currently being negotiated.
5.16 Undisclosed Liabilities. Except as set forth on Schedule 5.16,
the Trust does not have any liabilities or obligations of any nature (absolute,
accrued, contingent or otherwise) of the type required to be reflected or
disclosed in a balance sheet (or the notes thereto) prepared in accordance with
generally accepted United States accounting principles that were not fully
reflected or reserved against in the most recent balance sheet included as part
of the RPS Financial Statements, except for liabilities and obligations incurred
in the ordinary course of business and consistent with past practice since the
date thereof or liabilities or obligations contemplated by this Agreement and
the Related Agreements; the reserves reflected in the most recent balance sheet
included as part of the RPS Financial Statements are adequate, appropriate and
reasonable.
5.17 Tax Status of RPS Mortgage. In the event the Spin-Off
Transaction is consummated, such transaction will not cause the Trust to
recognize any gain for Federal income tax purposes.
5.18 Status of RPS Properties To the best knowledge of the Trust, as
of the date hereof, Schedule 5.18 is true and correct in all material respects.
5.19 Representations and Warranties Contained in the RPS Contribution
Agreements. All representations and warranties made by the Trust and/or its
Subsidiaries under the RPS Contribution Agreements are true and correct in all
material respects, as though made as of the date hereof and as a part of this
Agreement, except insofar as such representations relate solely to a particular
date or period, in which case they shall be true and correct in all material
respects with respect to such date and period.
6. COVENANTS.
6.1 (a) Trust Shareholder Meeting; Proxy Statement. Subject to the
fiduciary duties of the Board of Trustees of the Trust under applicable law (as
determined by such Board in good faith after consultation with and based upon
advice of counsel), in accordance with the applicable law of the State of
Massachusetts and its Declaration of Trust and By-Laws, and the policies and
regulations of the New York Stock Exchange Inc., the Trust shall take all action
necessary to convene a meeting of its shareholders as soon as practicable to
consider and vote to approve the Contemplated Transactions. Subject to (i) the
provisions of the following sentence and (ii) the fiduciary duties of the Board
of Trustees of the Trust under applicable law (as determined by the Board in
good faith and after consultation with and based upon the advise of counsel),
(x) the Proxy Statement shall contain the recommendation of the Trust's Board of
Trustees in favor of approval of the Contemplated Transactions, (y) such Board
of Trustees shall recommend that the shareholders of the Trust vote to approve
the Contemplated Transactions and (z) the Trust shall use commercially
reasonable efforts to solicit from shareholders of the Trust proxies in favor of
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approval of the Contemplated Transactions. Nothing contained in this Agreement
shall prohibit the Trust from complying with Rule 14e-2 promulgated under the
Exchange Act.
(b) Proxy Statements; Other Filings. As soon as practicable, the
Trust shall prepare, and the Trust shall file with the Commission under the
Exchange Act, and shall use commercially reasonable efforts to have cleared by
the Commission and promptly thereafter shall mail to its shareholders, a proxy
statement and a form of proxy with respect to the meeting of the Trust's
shareholders referred to in subparagraph (a) above. The term "PROXY STATEMENT"
shall mean each such proxy statement and all related proxy materials including,
without limitation, the notice of meeting, letter to shareholders and form of
proxy at the time such statement and materials initially are mailed to the
Trust's shareholders, and all amendments and supplements thereto, if any,
similarly filed and mailed. In connection with the Trust's preparation of the
Proxy Statement, Ramco shall provide to the Trust a description of the business
of Ramco, the Ramco Principals and their respective Affiliates, a description of
the Ramco Contribution Assets, biographies (which comply with the rules of the
Exchange Act) of those persons who will serve as officers and trustees of the
Trust, the financial statements referred to in clause (c) below and such other
information with respect to Ramco, the Ramco Principals and other Affiliates,
officers, directors and employees as the Trust shall reasonably request. As soon
as practicable after the date hereof, the Trust and Ramco shall promptly prepare
and file any other filings required to be filed by any of them under the
Exchange Act or any other federal or state law relating to the Contemplated
Transactions. The Trust and Ramco each shall use commercially reasonable efforts
to obtain and furnish the information required to be included in the Proxy
Statement and any other filings. The Trust shall use commercially reasonable
efforts to respond promptly to any comments made by the Commission with respect
to the Proxy Statement and any preliminary version thereof.
(c) Financial Statements. (i) As soon as practicable (but in no event
later than the dates set forth below), Ramco shall cause to be prepared the
financial statements referred to in Section 4.5. Prior to the delivery of any
financial statements pursuant to this Section 6.1(c), Ramco shall deliver to the
Trust drafts of such financial statements and shall give the Trust a reasonable
opportunity to comment upon such drafts. Ramco shall deliver the financial
statements identified in (A) clauses (i) and (ii) of Section 4.5(a) by May 8,
1995, (B) Section 4.5(b) (with respect to those financial statements relating to
December 31, 1994 or an earlier date) by May 10, 1995, and (C) Section 4.5(c) no
later than May 10, 1995. Ramco shall deliver the remaining financial statements
identified in Sections 4.5(a) and (b) (other than the updates of such financial
statements referred to in such sections) no later than June 8, 1995. Ramco and
the Trust, together with Deloitte & Touche, LLP, shall in good faith attempt to
resolve any disputes regarding the financial statements described in Sections
4.5(a), 4.5(b), and 4.5(c).
(ii) Through and including the quarter ending on March 31,
1997, the Trust agrees that at such times as it is required to release its
quarterly earnings, it shall present pro forma information simultaneously
therewith which adjusts the Trust's earnings and
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Funds from Operations to reflect the effect of the OP Units earned by the Ramco
Group at such date in accordance with Section 1.7(a) but which remain unissued
as of such date.
(iii) The Trust shall timely prepare such information as
relates to the RPS Properties to enable Ramco to prepare the financial
statements set forth in Section 4.5.
6.2 Compliance with Securities Laws. As soon as practicable (but in
no event later than May 15, 1995) Ramco shall cause the Memorandum to be
prepared in accordance with the standards set forth in Section 4.14(e). Ramco
shall deliver to the Trust drafts of the Memorandum and shall give the Trust a
reasonable opportunity to comment upon such drafts. As promptly as practicable
(but in no event later than 10 days after the completion of the Memorandum), in
connection with the offering of the Operating Partnership Interests pursuant to
the Contemplated Transactions, Ramco shall (a) make any filings required under
any blue sky or state securities laws, and (b) following the actions specified
in clause (a), complete the offering of Operating Partnership Interests and in
connection therewith comply with all applicable federal and state securities
laws to ensure that the offer and sale of the Operating Partnership Interests
will be exempt from the registration requirements of such laws. Ramco and the
Ramco Principals shall cause its counsel, Honigman Miller Schwartz and Cohn, to
deliver to the Trust no later than 30 days from the date of this Agreement an
opinion of counsel, in form and substance reasonably satisfactory to the Trust,
that the offering of Operating Partnership Interests to the Ramco Contributing
Parties and their respective partners is exempt from registration under Rule 506
promulgated under the Securities Act.
6.3 Consent of Partners. As promptly as practicable, each Ramco
Contributing Party shall, to the extent that the terms of its partnership
agreement require, use commercially reasonable efforts to solicit from the
partners of such Ramco Contributing Party consents to the consummation of the
Contemplated Transactions and shall use commercially reasonable efforts to
obtain all consents listed on Schedule 3.2 no later than June 15, 1995. To the
extent written solicitation materials are utilized to obtain such consents, such
materials will not contain, on the date they are delivered to any partner of a
Ramco Contributing Party, and on the Closing Date, any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. To the extent that at any time prior to the Closing any such
written solicitation materials contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in
light of the circumstances they were made, not misleading, then each Ramco
Contributing Party, as applicable, shall (i) provide to the recipients of such
written solicitation materials a written supplement thereto (such written
supplement to be deemed "written solicitation materials" for purposes of this
Section 6.3) and (ii) provide to each such recipient who previously consented to
the Contemplated Transactions a reasonable opportunity following receipt of such
written supplement to withdraw such consent.
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6.4 Closing Loans; Line of Credit. As soon as practicable, and
subject to Section 6.15 hereof, Ramco and the Ramco Principals shall use
commercially reasonable efforts to obtain commitments for the Refinance Loan,
the Credit Facility, the West Oaks II Loan, and the Spring Meadows Loan that do
not expire prior to March 31, 1996 (collectively, the "CLOSING LOANS") from
banks, insurance companies or financial institutions (reasonably acceptable to
the Trust) on the terms specified in Section 3.3(c) and to cause the conditions
under such commitment to be satisfied prior to or simultaneously with the
Closing. As soon as practicable, Ramco and the Ramco Principals shall use
commercially reasonable efforts to obtain a commitment for the Southfield Plaza
Expansion Loan from a bank, insurance company or financial institution on the
terms specified in Section 3.3(c) and to cause such loan to be closed prior to
Closing. If as a result of vacancies at the Jackson Crossing Property or the
possible or ongoing right of certain tenants at the Jackson Crossing Property to
terminate their leases as a result of such vacancies, the lender under the
Refinance Loan requires that the Operating Partnership pledge to it collateral
(in excess of the collateral specified in Section 3.3(c)(i)), as a condition of
making such loan, the Ramco Principals agree to pledge to such lender such
additional collateral. Notwithstanding the foregoing, no Closing Loan shall be
closed unless and until (x) the Contemplated Transactions have been consummated
or (y) to the extent that the Trust has advanced any expenses relating to a
particular Closing Loan (including, without limitation, any application fee or
deposits), the Ramco Principals have reimbursed the Trust (or make provisions
for the reimbursement of the Trust that are reasonably acceptable to the Trust)
for the pro rata portion of any such expenses advanced by the Trust relating to
such Closing Loan (or any portion thereof) so closed, including, without
limitation, any application fees or deposits. To the extent prior to the Closing
the Trust receives a reimbursement of fees, expenses, or deposits previously
advanced by the Trust in connection with a Closing Loan, such amounts shall be
recontributed by the Trust to the Operating Partnership as part of the RPS Cash.
In the event that Ramco does not deliver to the Trust the financial statements
identified in clauses (i) and (ii) of Section 4.5(a), Section 4.5(b) (with
respect to those financial statements relating to December 31, 1994 or an
earlier date) and Section 4.5(c) by May 10, 1995 and the closing of the
Refinance Loan does not occur because the term of the commitment therefor
expired because of delays in the timely delivery of the financial statements set
forth in Section 6.1(c), the Ramco Principals agree, jointly and severally, to
reimburse the Trust, within 5 days of the termination of this Agreement, for any
amounts advanced by the Trust relating to the Refinance Loan including, without
limitation, any application fees or deposits advanced pursuant to Section 6.15
hereof.
6.5 Access. Between the date of this Agreement and the Closing Date,
Ramco, the Operating Partnership, the Ramco Principals, the Ramco Contributing
Parties, on the one hand, and the Trust, on the other hand, shall (and shall use
commercially reasonable efforts to cause its Affiliates to) afford to the
officers, employees, counsel, auditors, financial advisors and other authorized
representatives of the other full access during normal business hours to all its
properties, personnel, books and records that relate (directly or indirectly) to
the assets or properties that, following the Closing, will be owned by the
Operating Partnership and furnish promptly to such persons such information
concerning its business, properties, personnel and affairs as such persons shall
from time to time reasonably request.
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Ramco and the Ramco Principals will respond promptly to all outstanding requests
for information as set forth in Schedule 6.5 received from the Trust and its
legal and financial advisers regarding Ramco and the Ramco Properties.
6.6 Public Announcements. Neither the Trust, on the one hand, nor
Ramco, the Operating Partnership, any Ramco Principal or any Ramco Contributing
Party, on the other hand, shall (and each such party shall use its reasonable
efforts to cause its Affiliates, directors, trustees, officers, employees,
agents and representatives not to), issue any press release, make any public
announcement or furnish any written statement to its employees or shareholders
generally concerning the Contemplated Transactions without the consent of the
other party (which consent shall not be unreasonably withheld), except to the
extent required by applicable law or the applicable requirements of the New York
Stock Exchange, Inc. (and in either such case such party shall, to the extent
consistent with timely compliance with such requirement, consult with the other
party prior to making the required release, announcement or statement).
6.7 No Solicitation. Subject to the fiduciary duties of the Trust's
Board of Trustees under applicable law and except as set forth in the third
sentence of this Section 6.7, each of the Trust, on the one hand, and Ramco, the
Operating Partnership, the Ramco Principals and the Ramco Contributing Parties,
on the other hand, shall not, directly or indirectly, through any officer,
director, trustee, employee, agent or representative or otherwise (a) solicit or
initiate the submission of proposals or offers from any other person or entity
relating to any Alternative Transaction (as defined below); (b) cooperate with,
or furnish or cause to be furnished any non-public information concerning its
business, properties or assets or the business, properties or assets of any of
its Subsidiaries to, any other person or entity in connection with any
Alternative Transaction; (c) negotiate with any other person or entity with
respect to any Alternative Transaction; or (d) enter into any agreement or
understanding with any other person or entity with the intent to effect any
Alternative Transaction. Each of the Trust and Ramco will immediately give
written notice to the other of the details of any Alternative Transaction of
which it is currently or becomes aware. Notwithstanding the foregoing, nothing
contained in this Section 6.7 shall prohibit the Trust or its Board of Trustees,
to the extent required by their fiduciary duties under applicable law, from (i)
providing information to, or participating in discussions or negotiations with,
any Person that makes an unsolicited inquiry to such party if the Board of
Trustees reasonably believes such Person may propose an Alternative Transaction
on terms that are superior to the terms of the Contemplated Transactions for the
shareholders of the Trust (a "SUPERIOR ALTERNATIVE TRANSACTION") or (ii)
entering into an agreement with respect to a Superior Alternative Transaction
after receipt by Ramco of written notice of (A) the material terms of such
Superior Alternative Transaction and (B) the identity of the Person making such
proposal. As used in this Section, "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, properties or business of the Trust
is acquired by or combined with any Person; provided, however, an Alternative
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Transaction shall not include the disposition, transfer or sale of the RPS
Mortgage Assets or any actions relating to, or consummation of, the Spin-Off
Transaction. Nothing contained herein shall be construed to prohibit either the
Trust or its Board of Trustees, respectively, from making any disclosure to its
shareholders which, in the judgment of the Board as advised by its counsel, may
be required by applicable law in connection with any such proposal or offer or
from complying with Rule 14e-2 promulgated under the Exchange Act.
6.8 Indemnification and Insurance. (a) In the event of any threatened
or actual claim, action, suit, proceeding or investigation, whether civil,
criminal or administrative, including, without limitation, any such claim,
action, suit, proceeding or investigation in which any of the present or former
officers or trustees (the "MANAGERS") of the Trust is, or is threatened to be,
made a party by reason of the fact that he is or was a trustee, officer,
employee or agent of the Trust, or is or was serving at the request of the Trust
as a trustee, director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, whether before or after
the Closing, the Trust shall use its best efforts to defend against such claim,
action, fact, proceeding or investigation and to respond promptly thereto. It is
understood and agreed that the Trust shall indemnify and hold harmless, as and
to the full extent permitted by applicable law, each such Manager against any
losses, claims, damages, liabilities, costs, expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement in connection with any
such claim, action, suit, proceeding or investigation, and in the event of any
such claim, action, suit, proceeding or investigation (whether arising before or
after the Closing), (i) the Managers may retain counsel satisfactory to them,
and the Trust shall pay all fees and expenses of such counsel for the Managers
promptly as statements therefor are received and (ii) the Trust will use its
best efforts to assist in the vigorous defense of any such matter; provided that
the Trust shall not be liable for any settlement effected without its prior
written consent (which consent shall not be unreasonably withheld); and provided
further that the Trust shall have no obligation hereunder to any Manager when
and if a court of competent jurisdiction shall ultimately determine, and such
determination shall have become final and non-appealable, that indemnification
of such Manager in the manner contemplated hereby is prohibited by applicable
law. Any Manager wishing to claim indemnification under this Section 6.8(a),
upon learning of any such claim, action, suit, proceeding or investigation,
shall notify the Trust thereof.
(b) The Trust acknowledges and agrees that all rights to
indemnification existing in favor of the present or former trustees, directors,
officers, employees, fiduciaries and agents of the Trust or any of its
Subsidiaries (collectively, the "INDEMNIFIED PARTIES") as provided in the
Trust's Declaration of Trust or By-Laws or the certificate or articles of
incorporation, by-laws or similar documents of any of the Trust's Subsidiaries
as in effect as of the date hereof with respect to matters occurring prior to
the Closing shall survive the Closing and shall not be amended in a manner which
would have the effect of limiting such indemnification rights for a period of
not less than five years. The Trust shall cause to be maintained in effect for
not less than five years from the Closing directors' and officers' liability
insurance with a policy limit of not less than $10,000,000 and, except for the
policy
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limit, containing terms and conditions which are no less advantageous than the
terms and conditions included in the Trust's current directors' and officers'
liability policies.
(c) If, prior to Closing, the Trust shall purchase a special
directors' and officers' liability insurance policy that covers matters
occurring prior to Closing, including, without limitation, the approval and
consummation of the Contemplated Transactions (the "RUN OFF POLICY"), the Trust
agrees and hereby designates a committee consisting of Joel Pashcow, Arthur
Goldberg and Stephen Blank to make all future decisions relating to the Run Off
Policy, including the disposition of policy proceeds.
(d) In the event the Trust purchases the Run Off Policy, the
directors' and officers liability insurance policy referred to in clause (b)
above may exclude from its coverage claims relating to matters occurring prior
to Closing.
(e) The Trust acknowledges and agrees that the cost of the Run Off
Policy shall not be an expense of the Contemplated Transactions or of the
Operating Partnership and shall not be paid for with RPS Cash.
(f) Each of the Managers and the Indemnified Parties shall be deemed
third party beneficiaries of the provisions of this Section 6.8.
6.9 Notification of Certain Matters. (a) Between the date of this
Agreement and the Closing Date, the Trust will give prompt notice to Ramco, and
Ramco will give prompt notice to the Trust, of: (i) the occurrence, or failure
to occur, of event that would be likely to cause any representation or warranty
contained in this Agreement or the Related Agreements to be untrue or inaccurate
in any material respect at any time from the date of this Agreement to the
Closing Date (except for changes permitted or contemplated by this Agreement),
(ii) any failure of Ramco, the Operating Partnership, the Ramco Principals and
the Ramco Contributing Parties, on the one hand, or the Trust, on the other
hand, to comply with or satisfy, in any material respect, any covenant,
condition or agreement to be complied with by any of them under this Agreement
or the Related Agreements, (iii) any notice or other communication from any
third party alleging that the consent of such third party is or may be required
in connection with the Contemplated Transactions or that such transactions
otherwise may violate the rights of or confer remedies upon such third party and
(iv) any notice of, or other communication relating to, any litigation or any
order or judgment entered or rendered therein.
(b) Between the date of the mailing of the Proxy Statement to the
Trust's shareholders and the Closing Date, Ramco shall notify the Trust of any
material change in the information supplied by Ramco, the Operating Partnership,
any Ramco Principal or any Ramco Contributing Party or any of their respective
Affiliates, directors, officers, agents or representatives for inclusion in the
Proxy Statement.
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6.10 Approvals. Each of Ramco, the Operating Partnership, the Ramco
Principals, the Ramco Contributing Parties and the Trust shall as promptly as
practicable, (a) use commercially reasonable efforts to obtain all Required
Consents, and give all necessary notices to and make all necessary filings with
and applications and submissions to, any Governmental Body or other Person in
connection with the consummation of the Contemplated Transactions, and (b)
cooperate with the reasonable requests of any other party in connection with the
foregoing.
6.11 Operation in Ordinary Course. Between the date of this Agreement
and the Closing Date, each of Ramco, the Operating Partnership, the Ramco
Principals, the Ramco Contributing Parties and the Trust shall conduct his or
its business only in the ordinary course and consistent with past practice,
except that the foregoing shall not apply to the RPS Mortgage Assets, the
Spin-Off Transaction or the purchase by the Trust of the Run Off Policy or any
other transaction or event contemplated by this Agreement and the Related
Agreements, including, without limitation, execution, delivery and performance
of the Termination Agreements.
6.12 Business Organization. Between the date of this Agreement and
the Closing Date, each of Ramco, the Operating Partnership, the Ramco
Principals, the Ramco Contributing Parties and the Trust shall use its best
efforts to (a) preserve substantially intact his or its business organization
and keep available the services of its present officers and employees (except as
otherwise required or contemplated by this Agreement), and (b) preserve in all
material respects the present business relationships, financing arrangements and
goodwill.
6.13 Conduct of Business by the Ramco Group and the Trust Prior to
the Closing. Between the date of this Agreement and the Closing Date, each of
Ramco, the Operating Partnership and the Ramco Contributing Parties, on the one
hand, and the Trust, on the other hand, shall not, without the consent of the
other party (which consent shall not be unreasonably withheld) except as
specifically contemplated by this Agreement or as set forth on Schedule 6.13:
(a) make any changes or amendment of its limited partnership
agreement, declaration of trust, certificate of incorporation or by-laws
(or other governing instrument), except for, in the case of the Trust, the
Charter Amendments contemplated by Section 1.8(c) of this Agreement, and,
in the case of the Ramco Contributing Parties, amendments to the
partnership agreements set forth on Schedule 6.13;
(b) issue, sell or otherwise dispose of any of its Equity Securities,
or create, sell or otherwise dispose of any options, rights, conversion
rights or other agreements or commitments of any kind relating to the
issuance, sale or disposition of any of its Equity Securities;
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(c) declare or pay any dividends in cash, securities or other
property, make any other distribution with respect to its Equity
Securities or acquire, directly or indirectly, by redemption or otherwise,
any of its Equity Securities, except for, in the case of the Trust,
regular quarterly dividends on the Shares or any special dividends
relating to the Spin-Off Transaction or the consummation of the
Contemplated Transactions, or any sale, pledge, transfer or other
disposition of the RPS Mortgage Assets;
(d) reclassify, split up or otherwise change any of its Equity
Securities, except for, in the case of the Trust, effectuation of the
Reverse Split;
(e) be party to any merger, consolidation or other business
combination;
(f) organize any new Subsidiary or acquire any Equity Securities of
any Person or any equity or ownership interest in any business, except for
the issuance of the Operating Partnership Interests pursuant to this
Agreement;
(g) except with respect to the Ramco Excluded Assets, borrow any
funds or otherwise become subject to, whether directly or by way of
guarantee or otherwise, any indebtedness for borrowing money, except for
the refinancing of indebtedness paid at maturity through short-term
borrowings which mature on or before the Closing Date or borrowings which
are assumed by RPS Mortgage at the Closing;
(h) prepay any obligation having a maturity of more than 90 days from
the date it was issued and incurred, except for the prepayments
contemplated in Section 6.16(iii) of this Agreement;
(i) enter into any agreement or commitment that restricts it from
carrying on any business anywhere in the world;
(j) waive any claims or rights of substantial value; or
(k) agree or otherwise commit, whether in writing or otherwise, to do
any of the foregoing; provided, however, that the Trust may enter into an
agreement providing for a Superior Alternative Transaction if this
Agreement is thereafter terminated pursuant to Section 9.
Notwithstanding the foregoing, this Section 6.13 shall not apply to
the Spin-Off Transaction, the RPS Mortgage Assets, the Run Off Policy, the Ramco
Excluded Assets or any other transaction or event contemplated by this Agreement
or the Related Agreements.
6.14 Reservation and Listing of Shares. The Trust shall take all
action necessary to reserve a sufficient number of Shares for issuance upon (a)
exercise of the options granted under the New Option Plan and (b) exchange of
the Operating Partnership
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Interests for Shares in accordance with the terms of the Partnership Agreement,
and shall take all action necessary to list such reserved Shares, subject to
official notice of issuance, on the New York Stock Exchange, Inc.
6.15 Advancement of Expenses. The parties acknowledge that, as of
November 15, 1995, the Trust has advanced $2,471,000 (the "REFINANCE LOAN
ADVANCE") to the Ramco Principals for the sole purpose of paying application
fees, commitment fees, and other similar fees and charges required to be paid to
the lender who is making the Refinance Loan (the "REFINANCE LENDER"). If the
Closing does not occur for any reason other than the breach by any member of the
Ramco Group of any of the representations, warranties, covenants or agreements
set forth herein, Ramco, the Ramco Principals and the Ramco Contributing Parties
shall take all actions necessary to cause the refundable portion of the
Refinance Loan Advance to be returned by the Refinance Lender to the Trust;
provided, however, to the extent the refundable portion of such advance is for
any reason less than $2,059,000, the Ramco Principals shall, jointly and
severally, pay to the Trust (within 5 days after the termination of this
Agreement) an amount equal to the difference between $2,059,000 and the
refundable portion of the Refinance Loan Advance. If the Closing occurs, the
non-refundable portion of the Refinance Loan Advance shall be treated for all
purposes hereunder as an expense of the Contemplated Transactions. The Ramco
Group shall advance all expenses (including, without limitation, any extension
fees) necessary in order to keep the commitment relating to the Refinance Loan
effective through the earlier of (x) the Closing Date or (y) March 31, 1996.
Ramco and the Ramco Principals, jointly and severally, agree to repay the full
amount of the Refinance Loan Advance to the Trust in the event this Agreement is
terminated prior to the Closing as a result of a breach by any member of the
Ramco Group of any of the representations, warranties, covenants or agreements
set forth herein. The Ramco Group shall pay when due all application fees,
commitment fees and other similar fees and charges to any other lender who is
making or contemplating making a Closing Loan and the Southfield Plaza Expansion
Loan and shall advance when due all expenses (including, without limitation, any
extension fees) necessary to keep any commitment relating to a Closing Loan and
the Southfield Plaza Expansion Loan (if applicable) effective through the
earlier of (x) the Closing Date or (y) March 31, 1996. If the Closing occurs,
all amounts advanced by the Ramco Group in accordance with the obligation set
forth in the preceding sentence should be treated as an expense of the
Contemplated Transactions.
6.16 Uses of RPS Cash. (a) Subject to subsections (b) and (c) below,
upon consummation of the Contemplated Transactions the Trust shall cause the
Operating Partnership to use the RPS Cash as follows: (i) to pay or reimburse
the parties the fees and expenses relating to the Contemplated Transactions that
were not paid by the Trust (other than Excluded Expenses) up to a maximum of
$3,200,000, (ii) to repay the debt associated with the Ramco Properties that is
payable to Affiliates of Ramco and was assumed by the Operating Partnership
under the Ramco Agreements, as well as such debt associated with the Direct
Transfer Ramco Properties that is payable to Affiliates of Ramco and was assumed
by the Operating Partnership upon the transfer of the Direct Transfer Ramco
Properties to the
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Operating Partnership, as such debt may be designated by the Operating
Partnership prior to Closing (collectively, the "RAMCO AFFILIATE LOANS"),
provided, the aggregate amount of Ramco Affiliate Loans assumed by the Operating
Partnership at Closing, and repaid in accordance with this Section 6.16(ii),
does not exceed the difference between (x) $5,000,000, and (y) the refundable
portion of the Refinance Loan Advance, (iii) to pay or reimburse members of the
Ramco Group for costs (including, without limitation, legal fees) incurred in
connection with the assumption of and/or prepayment of existing debt affecting
the Ramco Properties (including defeasance costs, if any), as well as the costs
of partnership restructuring and associated expenses, provided, the amount
thereof, in the aggregate, does not exceed $250,000, and (iv) the balance to
prepay the debt listed on Schedule 6.16, in the manner consistent with the debt
amounts reflected in the Proxy Statement. Notwithstanding the foregoing, the RPS
Cash shall not be used to pay any costs identified in clause (iii) above which
exceed $250,000 in the aggregate or to reimburse any member of the Ramco Group
for cash amounts paid to any Person (x) in order to obtain his or its consent to
the Contemplated Transactions or (y) in connection with the purchase of such
Person's direct or indirect interest in any Ramco Property.
(b) If the Closing occurs, the Trust shall assign to Affiliates of
Ramco (as specified in writing by the Ramco Principals) any refundable portion
of the Refinance Loan Advance in partial satisfaction of the Ramco Affiliate
Loans. Any refundable portion of the Refinance Loan Advance that is assigned by
the Trust as set forth in the preceding sentence shall be deemed a principal
payment by the Operating Partnership in respect of a Ramco Affiliate Loan in a
principal amount equal to the Refinance Loan Advance so assigned.
Notwithstanding anything to the contrary included in this Agreement or any Ramco
Agreement, the Operating Partnership shall not assume or be liable for any Ramco
Affiliate Loans in an amount in excess of the difference between (x) $5,000,000
and (y) the refundable portion of Refinance Loan Advance that is assigned in
partial satisfaction of the Ramco Affiliate Loans as set forth in this Section
6.16(b). The Operating Partnership shall have the right to set off against any
amounts payable in respect of the Ramco Affiliate Loans any expenses relating to
the Contemplated Transactions required to be paid by the Ramco Principals as set
forth in Section 12(b)(iii) for which the Trust or the Operating Partnership
could have any liability.
(c) To the extent that prior to Closing the Trust has paid more than
$7,000,000 in fees and expenses relating to the Contemplated Transactions (other
than Excluded Expenses), at the Closing the Operating Partnership shall
reimburse the Trust in cash for the portion of the excess expenses so paid by
the Trust, which amount shall be treated as the payment by the Operating
Partnership of an expense of Contemplated Transactions pursuant to clause (i) of
Section 6.16(a).
6.17 Intentionally Omitted.
6.18 Waiver of Conditions in Ramco Agreements. Between the date of
this Agreement and the Closing Date, the Operating Partnership shall not waive
or be deemed to
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have waived any condition or approve or be deemed to have approved any matter or
modify any provision under the Ramco Agreements without the prior written
consent of the Trust, which consent shall not be unreasonably withheld. Upon
notice from the Trust to the Operating Partnership, which notice may be
delivered by the Trust in its sole and absolute discretion, the Operating
Partnership will, upon receipt of such notice, exercise its right to terminate
the Blue Ash Agreement pursuant to the due diligence termination provisions set
forth therein. In the event the Trust exercises its right to terminate the Blue
Ash Agreement in accordance with the preceding sentence, the Blue Ash property
shall be treated as a Ramco Excluded Asset and the Trust shall have no option to
purchase such property.
6.19 Satisfaction of Conditions under Ramco Agreements. Each member
of the Ramco Group shall use commercially reasonable efforts to satisfy the
conditions contained in the Ramco Agreements.
6.20 Other Actions by Ramco, the Ramco Principals and the Trust.
Between the date of this Agreement and the Closing Date, each of Ramco, the
Ramco Principals, the Operating Partnership, the Ramco Contributing Parties and
the Trust shall use commercially reasonable efforts to cause the conditions of
each party's obligations to be satisfied.
6.21 Responsibility for Covenants. Subject to any limitations set
forth in Article 7, the Ramco Principals shall, jointly and severally, be liable
for all Damages relating to the failure of any members of the Ramco Group to
comply with any covenant, obligation or agreement in this Agreement.
6.22 Executive Committee. If after the Closing, the Board of Trustees
of the Trust appoints an Executive Committee in accordance with the terms of its
Declaration of Trust, Joel M. Pashcow shall, so long he remains a trustee of the
Trust, be appointed to such Committee.
6.23 Payment of Accounting Expenses. Subject to Section 12.1, the
Trust shall pay all reasonable fees and expenses of Deloitte & Touche LLP in
connection with the Contemplated Transactions; provided, however, neither the
Trust nor the Operating Partnership shall have any obligation to pay any such
accounting fees and expenses if (x) Ramco fails to timely deliver the financial
statements in accordance with Section 6.1(c) hereof and (y) the Contemplated
Transactions are not consummated.
6.24 North Towne Option Agreement. As soon as practicable, the Ramco
Principals shall use commercially reasonable efforts (without the payment of
money or other consideration except normal fees and expenses of counsel and
necessary overhead costs) to obtain any consents necessary to effectuate the
intent of such agreement.
6.25 Kroger Lease. In the event any fees are required to be paid to
the tenant under the Kroger lease at the West Oaks I Ramco Property in
connection with the termination of such lease and the vacating of the space
currently occupied by such tenant, the
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Ramco Principals shall, jointly and severally, pay any and all such fees and no
member of the Ramco Group shall be entitled to any reimbursement or closing
adjustment under any Ramco Agreement that is attributable to the payment of such
fees.
6.26 Trustees and Officers. If the Closing occurs and so long as
either the Trust or the Operating Partnership owns any Equity Securities in
Ramco, the Ramco Principals shall take all necessary action within their
respective authority and power, including in their respective capacities as
trustees, directors, officers, and/or securityholders of Ramco or the Trust, as
applicable, to cause there to be no commonality of the trustees and officers of
the Trust, on the one hand, and the directors and officers of Ramco, on the
other hand, except that there may exist one common officer of the Trust and
Ramco, provided that such individual is not a trustee of the Trust.
6.27 Certain Arrangements with Executives. The Trust will use
commercially reasonable efforts to enter into consentual termination agreements
with Herbert Liechtung and Joel M. Pashcow relating to their respective
employment agreements with the Trust that will become effective prior to or
simultaneous with the Closing. If the Closing occurs and such termination
agreements have not been entered into with either or both of Herbert Liechtung
and Joel M. Pashcow, RPS Mortgage will, at the Closing, assume the liability for
any future monetary obligations due and owing under the Trust's employment
agreements with Herbert Liechtung and Joel M. Pashcow (as applicable) for
salary, bonuses and perquisites provided for under such agreements; provided,
however, RPS Mortgage shall not have any liability in respect of any amendments
to such agreements which occur after the Closing or any punitive or
consequential damages (other than such damages which result from a loss of such
officer's title as Chairman or President (as applicable)) which arise under such
agreements which result from actions (but not inactions) taken by the Trust
after the Closing.
7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
7.1 Survival. All representations, warranties and agreements
contained in this Agreement or in any certificate delivered pursuant to this
Agreement shall survive the Closing.
7.2 Time and Other Limitations. If the Closing occurs, Ramco and the
Operating Partnership shall have no liability (for indemnification or otherwise)
with respect to any breach of any representation, warranty, covenant, obligation
or agreement and the Ramco Principals and each other Ramco Contributing Party
waives any right of contribution it may have against Ramco and the Operating
Partnership. If the Closing occurs, no Ramco Contributing Party (other than the
Ramco Principals) shall have any liability (for indemnification or otherwise)
with respect to any breach of any representation, warranty or any covenant,
obligation or agreement to be performed or complied with prior to the Closing
Date except as contemplated by the Pledge Agreement. If the Closing occurs, no
Ramco Principal shall have any liability (for indemnification or otherwise) with
respect to any representation or warranty (other than as set forth in Sections
4.14 and 4.21) or any covenant,
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obligation or agreement to be performed and complied with prior to the Closing
Date (other than with respect to obligations under the Kohl's Lease as set forth
in Section 1.7(a)(iii), or as set forth in Section 1.15), unless on or before
April 30, 1997 the Ramco Principals are given notice asserting a claim with
respect thereto and specifying the factual basis of that claim in reasonable
detail to the extent then known by the Trust. If the Closing occurs, the Ramco
Principals shall have no liability (for indemnification or otherwise) with
respect to any representation or warranty set forth in Section 4.14 unless on or
before the date which is 30 days following the expiration of the applicable
statute of limitations the Ramco Principals are given notice asserting a claim
with respect thereto and specifying the factual basis of that claim in
reasonable detail to the extent then known by the Trust. A claim with respect to
the breach or failure of the representation or warranty set forth in Section
4.21 may be made at any time. If the Closing occurs, the Trust shall have no
liability (for indemnification or otherwise) with respect to any representation,
or warranty or any covenant, obligation or agreement to be performed and
complied with prior to the Closing Date, unless on or before April 30, 1997 the
Trust is given notice of a claim with respect thereto and specifying the factual
basis of that claim in reasonable detail to the extent then known by the Ramco
Principals.
7.3 Limitations as to Amount. (a) If the Closing occurs, neither the
Trust nor any Ramco Principal shall have liability (for indemnification or
otherwise) with respect to any failure or breach of any representation or
warranty (other than with respect to the last sentence of Section 4.7 and
Section 4.21) or any covenant, agreement or obligation to be performed and
complied with prior to the Closing Date (other than with respect to obligations
under the Kohl's Lease as set forth in Section 1.7(a)(ii) and as set forth in
Sections 1.15 and 6.15) until the total of all Damages with respect to such
failure or breach exceeds $250,000 but then for the entire amount of such
Damages, including those not in excess of $250,000.
(b) If the Closing occurs, the Trust's aggregate liability (for
indemnification or otherwise) with respect to the Trust's failure or breach of
any representation or warranty or any covenant, agreement or obligation to be
performed and complied with prior to the Closing Date shall not exceed
$45,000,000.
(c) If the Closing occurs, recourse against the Ramco Principals (for
indemnification obligations or otherwise) with respect to the Ramco Group's
failure or breach of any representation or warranty (other than as set forth in
Section 4.14 and 4.21) or any covenant, agreement or obligation to be performed
and complied with prior to the Closing Date (other with respect to obligations
under the Kohl's Lease as set forth in Sections 1.7(a)(ii) and as set forth in
Sections 1.15 and 6.15) shall be limited to the Trust's right to pursue its
rights and remedies under the Pledge Agreement.
(d) The limitations set forth in this Section 7.3 shall not limit
claims against the Trust with respect to any Trust intentional misrepresentation
or intentional breach of warranty or intentional failure to perform and comply
with any covenant, agreement or
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obligation to be performed prior to the Closing Date and the Trust shall be
liable for all Damages with respect thereto.
(e) The limitations set forth in this Section 7.3 shall not limit
claims against the Ramco Principals with respect to any Ramco Group intentional
misrepresentation or intentional breach of warranty or intentional failure to
perform and comply with any covenant, agreement or obligation to be performed
prior to the Closing Date and the Ramco Principals shall be liable for all
Damages with respect thereto.
7.4 Indemnification by the Ramco Principals. Subject to the
limitations set forth in Sections 7.2 and 7.3, the Ramco Principals, jointly and
severally, shall indemnify and hold harmless the Trust, the Operating
Partnership, each subsidiary of the Trust and the Operating Partnership, and any
of their officers, directors, trustees, employees or agents for, any loss,
liability, claim, damage, expense (including, but not limited to, costs of
investigation and defense and reasonable attorneys' fees) or diminution of value
(collectively, "DAMAGES") arising from or in connection with (a) any inaccuracy
in any of the representations and warranties of any member of the Ramco Group in
this Agreement or in any Ramco Agreement, any inaccuracies in the certificate
delivered pursuant to Section 3.3(c), or any actions, omissions or state of
facts inconsistent with any such representation or warranty, (b) any failure by
any member of the Ramco Group to perform or comply with any covenant, obligation
or agreement in this Agreement or in any Ramco Agreement, (c) any liabilities of
any Ramco Contributing Party not specifically assumed by the Operating
Partnership under the Ramco Agreements, (d) any claim by any Person (other than
Dean Witter) for brokerage or finder's fees or commissions or similar payments
based upon any agreement or understanding alleged to have been made by any such
Person with the Trust (or any Person acting on its behalf) in connection with
any of the Contemplated Transactions, (e) any joint and several liability which
is imposed on the Trust or the Operating Partnership, or any of their rights,
properties or assets, pursuant to Title I or IV of ERISA or Section 401(a)(29)
or 412 of the Code solely as a result of either of them being treated as an
ERISA Affiliate of Ramco or any of the Ramco Principals, (f) any of the
specified environmental conditions relating to the Jackson Crossing Property and
the Orion Property as set forth on Schedule 7.4(f), (g) the inability of the
Operating Partnership (or any Subsidiary of sub-tier partnerships that may hold
title to the Ramco Properties) to resell, after the Closing, electricity to the
tenants at such properties in accordance with the past practices of the Ramco
Group as they exist on the date hereof but only to the extent such inability
relates to the transfer of title to such properties as a result of the
consummation of the Contemplated Transactions, (h) any violation of the Ground
Round Lease Restriction or the OEA Restriction that is attributable to
activities permitted under the Aggies Lease, (i) any disputes regarding the
division of the Ramco Interest among the Ramco Principals and the Ramco
Contributing Parties, (j) any liability for transfer taxes relating to the
transfer of title to the Ramco Properties to the Operating Partnership in
connection with the Contemplated Transactions, or (k) any liabilities of Ramco
relating directly or indirectly to Ramco's agreement to insure or act as a
primary or co-insurer of the property of any other Person, or (l) the
obligations of the landlord under Section 3.5 of the Kohl's Lease.
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7.5 Indemnification by the Trust. Subject to the limitations set
forth in Sections 7.2 and 7.3, the Trust shall indemnify and hold harmless the
Ramco Principals and the Ramco Contributing Parties, and shall reimburse the
Ramco Principals and the Ramco Contributing Parties for, any Damages arising
from or in connection with (a) any inaccuracy in any of the representations and
warranties of the Trust and/or its Subsidiaries in this Agreement or in any RPS
Contribution Agreement, any inaccuracies in the certificate delivered pursuant
to Section 3.2(b), or any actions, omissions or state of facts inconsistent with
any such representation or warranty, (b) any failure by the Trust and/or its
Subsidiaries to perform or comply with any agreement in this Agreement or in any
RPS Contribution Agreement, (c) any liabilities of the Trust's Subsidiaries that
relate to the RPS Properties but were not specifically assumed by the Operating
Partnership under the RPS Contribution Agreements, (d) any claim by any Person
(other than Dean Witter) for brokerage or finder's fees or commissions or
similar payments based upon any agreement or understanding alleged to have been
made by such Person with the Trust (or any Person acting on its behalf) in
connection with any of the Contemplated Transactions or (e) any of the specified
environmental conditions relating to the Trinity Corners shopping center as set
forth on Schedule 7.5(e).
7.6 Procedure for Indemnification. Promptly after receipt by an
indemnified party under Section 7.4 or 7.5 of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party under such section, give notice to the
indemnifying party of the commencement thereof, but the failure so to notify the
indemnifying party shall not relieve it of any liability that it may have to any
indemnified party except to the extent the indemnifying party demonstrates that
the defense of such action is prejudiced thereby. In case any such action shall
be brought against an indemnified party and it shall give notice to the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, to assume
the defense thereof with counsel reasonably satisfactory to such indemnified
party and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party under such section for any fees of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party in connection with the defense thereof, other than reasonable
costs of investigation. If an indemnifying party assumes the defense of such an
action, (a) no compromise or settlement thereof may be effected by the
indemnifying party without the indemnified party's consent unless (i) there is
no finding or admission of any violation of law or any violation of the rights
of any Person and no effect on any other claims that may be made against the
indemnified party and (ii) the sole relief provided is monetary damages that are
paid in full by the indemnifying party and (b) the indemnifying party shall have
no liability with respect to any compromise or settlement thereof effected
without its consent (which consent will not be unreasonably withheld). If notice
is given to an indemnifying party of the commencement of any action and it does
not, within ten days after the indemnified party's notice is given, give notice
to the indemnified party of its election to assume the defense thereof, the
indemnifying party shall be bound by any determination made in such action or
any compromise or settlement
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thereof effected by the indemnified party. Notwithstanding the foregoing, if an
indemnified party determines in good faith that there is a reasonable
probability that an action may adversely affect it or its affiliates other than
as a result of monetary damages, such indemnified party may, by notice to the
indemnifying party, assume the exclusive right to defend, compromise or settle
such action, but the indemnifying party shall not be bound by any determination
of an action so defended or any compromise or settlement thereof effected
without its consent (which consent shall not be unreasonably withheld).
Notwithstanding the foregoing, any determination with respect to (i) the Trust's
indemnification of any Ramco Contributing Party or Ramco Principal must be
approved by a least a majority of the Independent Trustees and (ii) the Trust's
determination to make a claim for indemnification against any Ramco Principal
shall be made solely by a majority of the Independent Trustees.
8. DEFINITIONS.
As used in this Agreement, the following terms have the meanings
specified or referred to in this Section 8.
8.1 "AFFILIATE" -- The meaning ascribed to such term in Rule 12b-2
under the Exchange Act.
8.2 "AGGIES LEASE" -- The Aggies Sports Bar Lease at the Jackson
Crossing Property.
8.3 "ALTERNATIVE TRANSACTION" -- See Section 6.7 hereof.
8.4 "BLUE ASH AGREEMENT" -- Agreement dated the date hereof by and
between KM Blue Ash Development Company, an Ohio co-partnership, as Owner, and
the Operating Partnership, as Recipient, with respect to the property known as
"Blue Ash Commons" located in Blue Ash, Ohio, as such agreement is amended from
time to time.
8.5 "BUSINESS DAY" -- Any day that is not a Saturday or Sunday or a
day on which banks located in the City of New York are authorized or required to
be closed.
8.6 "CHARTER AMENDMENTS" -- See Section 1.8(b) hereof.
8.7 "CLOSING LOANS" -- See Section 6.4.
8.8 "COBRA" -- See Section 4.16(f) hereof.
8.9 "CODE" -- The Internal Revenue Code of 1986, as amended.
8.10 "CLOSING" -- See Section 2 hereof.
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8.11 "CLOSING CONDITIONS AGREEMENT" -- The Closing Conditions
Agreement, dated as of the date hereof, between the Operating Partnership and
the Trust.
8.12 "CLOSING DATE" -- The date and time of the Closing.
8.13 "COMMISSION" -- The Securities and Exchange Commission.
8.14 "CONTEMPLATED TRANSACTIONS" -- The transfer (via contribution,
merger or otherwise) of the Ramco Contribution Assets and the Trust Contribution
Assets to the Operating Partnership, the Charter Amendments, adoption of the New
Option Plan, the Spin- Off Transaction, the transactions contemplated by the
Related Agreements and performance of and compliance with all other agreements
contained in this Agreement.
8.15 "CONTINUING TRUSTEES" -- As of any time, shall mean those
trustees of the Trust then in office who were trustees of the Trust immediately
prior to Closing; provided, however, if at any time the number of Continuing
Trustees is less than 4, the remaining Continuing Trustees (by a majority vote)
shall elect such number of Independent Trustees to become Continuing Trustees as
may be necessary to cause the number of Continuing Trustees to equal four
whereupon such Independent Trustee(s) shall be deemed Continuing Trustees for
all purposes hereunder.
8.16 "CREDIT FACILITY" -- See Section 3.3(c) hereof.
8.17 "DAMAGES" -- See Section 7.3 hereof.
8.18 "DEAN WITTER" -- Dean Witter Reynolds, Inc.
8.19 "DEVELOPMENT LAND" -- See Section 1.1 hereof.
8.20 "DIRECT TRANSFER RAMCO CONTRIBUTING PARTIES" -- See the
preamble.
8.21 "DIRECT TRANSFER RAMCO PROPERTIES" -- See the preamble.
8.22 "DISTRIBUTION PRO FORMA" -- See Section 4.5(c) hereof.
8.23 "DIVISION" -- See Section 3.3(o) hereof.
8.24 "EMPLOYEE PLAN" -- See Section 1.9 hereof.
8.25 "EQUITY SECURITIES" -- See Rule 3a11-1 under the Exchange Act.
8.26 "ERISA" -- The Employee Retirement Income Security Act of 1974,
as amended.
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8.27 "ERISA AFFILIATE" -- As applied to any person, means any trade
or business (whether or not incorporated) which is a member of the same
controlled group of corporations or group of trades or businesses under common
control as such person, or is treated as a single employer together with such
person under Section 414 of the Code or Title IV of ERISA.
8.28 "ESCROW TERMINATION DATE" -- See Section 1.5 hereof.
8.29 "EXCHANGE ACT" -- The Securities Exchange Act of 1934, as
amended.
8.30 "EXCLUDED ASSET OPTION AGREEMENT" -- See Section 3.3(h) hereof.
8.31 "EXCLUDED EXPENSES" -- shall mean (i) amounts paid or payable to
Herbert Liechtung and Joel Pashcow under the Termination Agreements (including
amounts payable to their respective counsel), (ii) expenses required to be paid
by the Ramco Contributing Parties under the Ramco Agreements (unless
specifically set forth herein), (iii) expenses to be paid by the Trust's
Subsidiaries under the RPS Contribution Agreements (unless specifically set
forth herein), (iv) expenses incurred in connection with the IRS' on-going
examination of the Trust's tax returns that are incurred from and after October
31, 1995 through the Closing Date and (v) as reasonably determined in good faith
by the Trust, expenses relating to the Spin-Off Transaction.
8.32 "FINAL DETERMINATION" -- shall mean either (i) a decision,
judgment, decree or other order by the United States Tax Court that the Trust or
RPS Mortgage (as applicable), in its sole and absolute discretion, determines
not to appeal or (ii) if there is a development in the law which occurs after
the date of this Agreement which would cause either the Trust or RPS Mortgage
(pursuant to the Tax Agreement referred to in Section 3.1(o)), based on the
advice of independent tax counsel, to assess the impact of the Trust's purchase
of reverse repurchase obligations during 1994 on the Trust's REIT status
significantly different from those set forth in the opinion delivered pursuant
to Section 3.2(c)(ii)(C), a settlement with the IRS that is approved by either
the Trust or RPS Mortgage.
8.33 "FUNDS FROM OPERATIONS" -- Net income (computed in accordance
with generally accepted United States accounting principles), excluding gains
(or losses) from debt restructuring or sales of property, plus depreciation of
real property, and after adjustments for unconsolidated partnerships and joint
ventures. Adjustments for unconsolidated partnerships and joint ventures will be
calculated to reflect Funds from Operations on the same basis.
8.34 "GOVERNMENTAL BODY" -- Any domestic or foreign national, state
or municipal or other local government or multi-national body (including, but
not limited to, the European Economic Community), any subdivision, agency,
commission or authority thereof, or any quasi-governmental or private body
exercising any regulatory or taxing authority thereunder.
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8.35 "GROUND ROUND LEASE RESTRICTION" -- The use restriction
contained in the Ground Round lease at the Jackson Crossing Shopping Center.
8.36 "KOHL'S LEASE" -- The lease, dated July 3, 1995, between Ramco
Jackson Delaware Limited Partnership, as landlord, and Kohl's Department Stores,
Inc., as tenant, with respect to space located at the Jackson Crossing Property.
8.37 "INDEMNIFIED PARTIES" -- See Section 6.8(b) hereof.
8.38 "INDEPENDENT TRUSTEE" -- As of any date, any trustee of the
Trust who is not a salaried employee of Ramco, the Trust and their respective
Affiliates.
8.39 "IRS" -- The United States Internal Revenue Service.
8.40 "JACKSON CROSSING PROPERTY" -- The Jackson Crossing Shopping
Mall, as the same may be expanded, currently owned by Ramco Jackson Delaware
Limited Partnership.
8.41 "JACKSON ESCROW" -- See Section 1.5(e) hereof.
8.42 "LOCK-UP AGREEMENTS" -- See Section 3.3(c) hereof.
8.43 "MAGIC PAGE LEASES" -- See Section 4.7(b) hereof.
8.44 "MANAGEMENT COMPANY" -- See Section 1.1 hereof.
8.45 "MATERIAL ADVERSE EFFECT" -- any change or effect that is
materially adverse to the business, assets, properties, results of operation or
financial condition.
8.46 "MAXIMUM RAMCO INTEREST" -- See Section 1.5(a).
8.47 "MEMORANDUM" -- See Section 4.14(e) hereof.
8.48 "MERGER PARTNERSHIP CLOSING DATE BALANCE SHEET" -- See Section
1.12 hereof.
8.49 "MICHIGAN PROPERTIES" -- See Section 1.14 hereof.
8.50 "MULTIEMPLOYER PLAN" -- A "multiemployer plan" as defined in
Section 3(37) of ERISA.
8.51 "NEGATIVE JACKSON NOI" -- See Section 1.7(a)(i) hereof.
8.52 "NEW OPTION PLAN" -- See Section 1.6 hereof.
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8.53 "NON-COMPETITION AGREEMENTS" -- See Section 3.3(f) hereof.
8.54 "NORTH TOWNE OPTION AGREEMENT" -- See Section 3.3(j) hereof.
8.55 "OEA RESTRICTION" -- The use restriction contained in the
Operating and Easement Agreement at the Jackson Crossing Shopping Center.
8.56 "OP UNITS" -- See Section 1.5(c) hereof.
8.57 "OPV" -- As of the date the determination is made, $16.00.
8.58 "OPERATING PARTNERSHIP" -- See the preamble.
8.59 "OPERATING PARTNERSHIP CLOSING DATE BALANCE SHEET" -- See
Section 1.11 hereof.
8.60 "OPERATING PARTNERSHIP INTERESTS" -- See the preamble.
8.61 "OPTION PLAN AMENDMENTS" -- See Section 1.9 hereof.
8.62 "OPTIONS" -- See Section 5.2(a) hereof.
8.63 "ORIGINAL MASTER AGREEMENT" -- See the preamble.
8.64 "ORION PROPERTY" -- The property known as Orion Plaza currently
owned by Ramco Orion Co.
8.65 "PARTNERSHIP AGREEMENT" -- The agreement of limited partnership
among the Trust, Ramco, Ramco REIT, Inc., the Ramco Principals and each member
of the Ramco Group who at Closing will be a limited partner in the Operating
Partnership, the form of which is attached as Exhibit A hereto.
8.66 "PERSON" -- Any individual, corporation, partnership, joint
venture, trust, association, unincorporated organization, other entity, or
Governmental Body.
8.67 "PHARMOR REPURCHASE UNITS" -- See Section 1.7(a)(i) hereof.
8.68 "PHARMOR SPACE" -- The space formerly occupied by PharMor of
Virginia, Inc. at the Jackson Crossing Property.
8.69 "PHARMOR SPACE UNITS" -- See Section 1.7(a)(i) hereof.
8.70 "PLAN" -- Any bonus, deferred compensation, severance pay,
pension, profit-sharing, retirement, insurance, stock purchase, stock option, or
other fringe benefit plan,
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arrangement or practice, written or otherwise, or any other "employee benefit
plan," as defined in Section 3(3) of ERISA, whether formal or informal.
8.71 "PROXY STATEMENT" -- See Section 6.1(b) hereof.
8.72 "QUALIFYING LEASE" -- Either (1) a lease that 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 the tenant is scheduled to be 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 Trust 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 the time period stated
in the lease), 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 real estate investment trust eligibility requirements, and it
requires the tenant to pay for an appropriate share of operating expenses at the
property or (2) the leases listed on Schedule 8.69 that satisfy all of the
conditions set forth in clause (1) except that the tenant under such lease is
not open for business.
8.73 "RAMCO" -- See the preamble.
8.74 "RAMCO AFFILIATE LOANS" -- See Section 6.16 hereof.
8.75 "RAMCO AGREEMENTS" -- The Agreements entered into by the Ramco
Contributing Parties and the Operating Partnership relating to each Ramco
Property to be contributed to the Operating Partnership.
8.76 "RAMCO BALANCE SHEETS" -- The balance sheets referred to in
clauses (ii) and (iv) of Section 4.5(a) hereof.
8.77 "RAMCO CONTRIBUTING PARTIES" -- The Ramco Affiliates listed on
Schedule 1 hereto.
8.78 "RAMCO CONTRIBUTION ASSETS" -- See Section 1.1 hereof.
8.79 "RAMCO EMPLOYMENT AGREEMENTS" -- See Section 3.1(g) hereof.
8.80 "RAMCO EXCLUDED ASSETS" -- The assets set forth on Schedule 4.7.
8.81 "RAMCO EXPENSES" -- See Section 1.7(b) hereof.
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8.82 "RAMCO GROUP" -- Ramco, the Operating Partnership, the Ramco
Principals, each of the Ramco Contributing Parties, and all partners in the
Ramco Contributing Parties.
8.83 "RAMCO INTEREST" -- See Section 1.5(a) hereof.
8.84 "RAMCO PLANS" -- See Section 4.16(a) hereof.
8.85 "RAMCO PRINCIPALS" -- See the preamble.
8.86 "RAMCO PROPERTIES" -- See the preamble.
8.87 "RAMCO STOCK" -- See Section 1.1 hereof.
8.88 "RAMCO STOCK CONTRIBUTION AGREEMENT" -- The Ramco Stock
Contribution Agreement to be entered into by the Ramco Principals and the
Operating Partnership, substantially in the form of Exhibit O attached hereto.
8.89 "REFINANCE LOAN" -- See Section 3.3(c) hereof
8.90 "REFINANCE LOAN ADVANCE" -- See Section 6.15 hereof.
8.91 "REGISTRATION RIGHTS AGREEMENT" -- See Section 3.2(f) hereof.
8.92 "RELATED AGREEMENTS" -- The Partnership Agreement, the Ramco
Stock Contribution Agreement, the Ramco Agreements, the RPS Contribution
Agreements, the Termination Agreements, the Ramco Employment Agreements, [the
Pashcow Employment Agreement], the Registration Rights Agreement, the Lock-Up
Agreements, the Non-Competition Agreements, the Excluded Asset Option
Agreement, the North Towne Option Agreement and the Pledge Agreement, as
applicable.
8.93 "REMAINING RPS LIABILITIES" -- See Section 1.10(a) hereof.
8.94 "REQUIRED CONSENTS" -- The licenses, authorizations, consents,
orders and approvals listed on Schedules 4.4 and 5.6 and designated as such by
an asterisk and such other material licenses, authorizations, consents, orders
and approvals that are necessary for the consummation of the Contemplated
Transactions that should have been listed on such Schedules.
8.95 "REVERSE SPLIT" -- See Section 1.8(a) hereof.
8.96 "RIGHTS" -- See Section 5.2(a) hereof.
8.97 "RPS CASH" -- See Section 1.2 hereof.
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8.98 "RPS CLOSING DATE BALANCE SHEET" -- See Section 1.10 hereof.
8.99 "RPS COMMISSION FILINGS" -- See Section 5.7 hereof.
8.100 "RPS FINANCIAL STATEMENTS" -- See Section 5.7 hereof.
8.101 "RPS CONTRIBUTION AGREEMENTS" -- The Asset Contribution
Agreements entered into by the Trust and the Operating Partnership relating to
each RPS Property to be contributed to the Operating Partnership.
8.102 "RPS MORTGAGE" -- The qualified REIT subsidiary to be formed by
the Trust in connection with the Spin-Off Transaction.
8.103 "RPS MORTGAGE ASSETS" -- See Section 3.1(e) hereof.
8.104 "RPS PLANS" -- See Section 5.14(a) hereof.
8.105 "RPS PROPERTIES" -- See Section 1.2 hereof.
8.106 "RUN OFF POLICY" -- See Section 6.8(b) hereof.
8.107 "SECURITIES ACT" -- The Securities Act of 1933, as amended.
8.108 "SHARES" -- The shares of beneficial interest of the Trust,
$.10 par value.
8.109 "SOUTHFIELD PLAZA EXPANSION LOAN" -- See Section 3.3(c) hereof.
8.110 "SPIN-OFF TRANSACTION" -- The contribution of the RPS Mortgage
Assets to RPS Mortgage by the Trust and the issuance of the shares of common
stock of RPS Mortgage to the Trust's shareholders by means of a pro rata
distribution.
8.111 "SPRING MEADOWS LOAN" -- See Section 3.3(c) hereof.
8.112 "SUBSIDIARY" -- With respect to any Person, any corporation of
which securities having the power to elect a majority of that corporation's
Board of Directors (or other governing body) (other than securities having that
power only upon the happening of a contingency that has not occurred) are held
by such Person or one or more of its Subsidiaries.
8.113 "SUPERIOR ALTERNATIVE TRANSACTION" -- See Section 6.7 hereof.
8.114 "TAX AGREEMENT" -- See Section 3.1(o) hereof.
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8.115 "TEL-TWELVE LEASE" -- The "Media Play" lease for the premises
in the Tel-Twelve Mall.
8.116 "TERMINATION DATE" -- See Section 2 hereof.
8.117 "TRUST" -- See the preamble.
8.118 "TRUST CONTRIBUTION ASSETS" -- See Section 1.2 hereof.
8.119 "TRUST CONTRIBUTION VALUE" -- $114,025,000.
8.120 "TRUST INTEREST" -- See Section 1.5(b) hereof.
8.121 "TRUSTEE" -- See Section 3.1(f) hereof.
8.122 "TRUSTEE PLAN" -- See Section 1.9 hereof.
8.123 "UPDATED DISTRIBUTION PRO FORMA" -- See Section 4.5(c) hereof.
8.124 "WARD TRUST" -- The Michael A. Ward Trust U/T/A dated 2/22/77,
as amended.
8.125 "WEST OAKS II LOAN" -- See Section 3.3(c) hereof.
9. TERMINATION.
9.1 Termination. This Agreement may be terminated before the Closing
occurs, whether before or after approval of the matters presented in connection
with the Contemplated Transactions by the Trust's shareholders, only as follows:
(a) By written agreement of Ramco and the Trust at any time.
(b) By the Trust:
(i) if the Trust's shareholders do not approve the
Contemplated Transactions;
(ii) if the consummation of the Contemplated Transactions by
the Trust would violate any non-appealable final order, decree or
judgment of any Governmental Body having competent jurisdiction;
(iii) following receipt by the Trust of a proposal for a
Superior Alternative Transaction to the extent that the Board of
Trustees of the Trust determines in good faith on the basis of advice
of counsel that such action is
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necessary or appropriate in order for the Board of Trustees of the
Trust to act in a manner that is consistent with its fiduciary
obligations under applicable law;
(iv) if any representation or warranty of any member of the
Ramco Group made herein (other than as set forth in Sections 4.5(a),
(b) or (c)) is untrue in any material respect (other than a change
permitted or contemplated by this Agreement) and such breach is not
cured within ten days of Ramco's receipt of a notice from the Trust
that such breach exists or has occurred;
(v) if any member of the Ramco Group shall have defaulted in
any material respect in the performance of any material obligation
under this Agreement and such breach is not cured within 30 days of
Ramco's receipt of notice from the Trust that such default exists or
has occurred;
(vi) if the conditions to the Trust's obligations to
consummate the Closing as set forth in Sections 3.1 and 3.3 cannot
reasonably be satisfied on or before the Termination Date;
(vii) if any representation or warranty set forth in Sections
4.5(a), (b) or (c) is untrue and such breach is not cured within ten
days of Ramco's receipt of a notice from the Trust that such breach
exists or has occurred; or
(viii) if any consent listed on Schedule 3.2 shall not have been
obtained on or before the date the Proxy Statement is first mailed to
the Trust's Shareholders.
(c) by Ramco:
(i) if the consummation of the Contemplated Transactions by
Ramco, the Operating Partnership, any Ramco Principal or any Ramco
Contributing Party would violate any non-appealable final order,
decree or judgment of any Governmental Body having competent
jurisdiction;
(ii) if any representation or warranty of the Trust made
herein is untrue in any material respect (other than due to a change
permitted or contemplated by the terms of this Agreement) and such
breach is not cured within ten days of the Trust's receipt of a
notice from Ramco that such breach exists or has occurred;
(iii) if the conditions to Ramco's obligations to consummate
the Closing as set forth in Sections 3.1 and 3.2 cannot reasonably be
satisfied on or before the Termination Date; or
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(iv) if the Trust shall have defaulted in any material respect
in the performance of any material obligation under this Agreement
and such breach is not cured within 30 days of the Trust's receipt of
notice from Ramco that such default exists or has occurred.
(d) Unless the Closing shall have theretofore taken place, by either
the Trust or Ramco after the Termination Date, provided that the
terminating party (including with respect to Ramco, any member of the Ramco
Group) is not otherwise in default or breach of this Agreement.
9.2 Effect of Termination. In the event that this Agreement is
terminated pursuant to Section 9.1, this Agreement shall terminate without any
liability or further obligation of any party to another, except for Sections
4.12, 5.13, 6.4(a), 6.15, 6.23, 11.1, 11.2 and 12.1 which shall survive
termination. However, a termination under Section 9.1 shall not relieve a
defaulting or breaching party (or any party who has liability under this
Agreement in respect of the actions of a defaulting or breaching party) from any
liability to the other party or parties hereto for or in respect of such default
or breach.
10. NOTICES.
All notices, consents and other communications under this agreement
shall be in writing and shall be deemed to have been duly given when (a)
delivered by hand, (b) sent by telecopier (with receipt confirmed), provided
that a copy is mailed by registered mail, return receipt requested, or (c) when
received by the addressee, if sent by Express Mail, Federal Express or other
express delivery service (receipt requested), in each case to the appropriate
addresses, and telecopier numbers set forth below (or to such other addresses,
and telecopier numbers as a party may designate as to itself by notice to the
other parties):
(a) If to the Trust:
RPS Realty Trust
747 Third Avenue
New York, New York 10017
Telecopier No.: (212) 355-2552
Attention: Mr. Joel M. Pashcow
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with a copy to:
Battle Fowler LLP
Park Avenue Tower
75 East 55th Street
New York, New York 10022
Telecopier No.: (212) 856-7812
Attention: Peter M. Fass, Esq.
(b) If to any member of the Ramco Group:
Ramco-Gershenson, Inc.
27600 Northwestern Hwy
Suite 200
Southfield, Michigan 48034
Telecopier No.: (810) 350-9925
Attention: Mr. Dennis Gershenson
with a copy to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226-3583
Telecopier No.: (313) 962-0176
Attention: Richard Burstein, Esq.
11. JURISDICTION; SERVICE OF PROCESS.
11.1 Jurisdiction. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this agreement may be
brought against any of the parties in the courts of the State of Michigan, or,
if it has or can acquire jurisdiction, in the Eastern District of Michigan, and
each of the parties hereby consents to the jurisdiction of such courts (and of
the appropriate appellate courts) in any such action or proceeding and waives
any objection to venue laid therein.
11.2 Service of Process. Process in any action or proceeding referred
to in Section 11.1 may be served on any party anywhere in the world, whether
within or without the State of Michigan and may also be served upon any party in
the manner provided for giving of notices to it in Section 10.
12. MISCELLANEOUS.
12.1 Expenses. (a) If the Contemplated Transactions are not
consummated because the Trust entered into an agreement relating to a Superior
Alternative Transaction
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with a third party,the Trust shall reimburse Ramco and the Ramco Principals for
all reasonable out-of-pocket expenses incurred by them in connection with the
Contemplated Transactions up to a maximum of $1,250,000 (without any offset or
credit for the Refinance Loan Advance).
(b) If the Closing occurs, the fees and expenses relating to the
Contemplated Transactions (including, without limitation, the non-refundable
portion of the Refinance Loan Advance) shall be paid in the following order of
priority:
(i) up to $7,000,000 in such fees and expenses (as
determined by the Trust in its sole and absolute discretion)
shall be paid by the Trust (which amount shall be reduced by
all fees and expenses incurred and paid by the Trust at or
prior to the Closing, including, without limitation, due
diligence fees and expenses, legal and accounting fees and
expenses and investment banking fees and expenses relating
to the negotiation, execution and performance of the
Original Agreement and this Agreement and the Trust's
evaluation of the Contemplated Transactions);
(ii) up to $3,200,000 of such fees and expenses (as
determined by the Trust) in excess of those paid or payable
by the Trust shall be paid by the Operating Partnership; and
(iii) the balance of such fees and expenses shall be paid,
jointly and severally, by the Ramco Contributing Parties and
the Ramco Principals.
Notwithstanding the foregoing, in no event shall the Trust or the
Operating Partnership have any liability under this Section 12.1 or otherwise
for (w) any amounts paid or payable to any Person in order to obtain his or its
consent to the Contemplated Transactions, (x) any amounts paid or payable to any
Person in connection with the purchase of such Person's direct or indirect
interest in any Ramco Property, (y) any costs (including, without limitation,
legal fees) incurred in connection with the assumption of and/or the prepayment
of existing debt affecting the Ramco Properties (including defeasance costs, if
any), as well as the costs of Ramco Group partnership restructuring and
associated expenses in excess of $250,000 or (z) expenses required to be paid by
the Ramco Contributing Parties under the Ramco Agreements (unless otherwise
specifically set forth herein), which amounts shall be paid, jointly and
severally, by the Ramco Contributing Parties and the Ramco Principals. For
purposes of this Section 12.1, the Excluded Expenses shall not be considered
expenses of the Contemplated Transactions.
(c) Except as set forth in Section 12.1(a), if the Closing does not
occur, each party hereto shall bear its own fees and expenses in connection with
this Agreement except that the Trust shall be liable for all reasonable fees and
expenses of Deloitte Touche LLP to the extent set forth in Section 6.23.
-61-
<PAGE> 69
12.2 Specific Performance. The parties acknowledge that the subject
matter of this Agreement is unique and that no adequate remedy of law would be
available for breach of this Agreement. Accordingly, each party agrees that the
other parties will be entitled to an appropriate decree of specific performance
or other equitable remedies to enforce this Agreement (without any bond or other
security being required) and each party waives the defense in any action or
proceeding brought to enforce this Agreement that there exists an adequate
remedy at law.
12.3 Captions. The captions in this Agreement are for convenience of
reference only and shall not be given any effect in the interpretation of this
Agreement.
12.4 No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any waiver must be
in writing.
12.5 Exclusive Agreement; Amendment. This Agreement supersedes all
prior agreements among the parties with respect to its subject matter, and is
intended (with the documents referred to herein) as a complete and exclusive
statement of the terms of the agreement among the parties with respect thereto
and cannot be changed or terminated except by a written instrument executed by
the party or parties against whom enforcement thereof is sought; provided,
however, that this Agreement shall not supersede the letter agreement dated
November 2, 1993 among the Trust, Ramco and the Ramco Principals. In the event
of inconsistencies between this Agreement and the Ramco Agreements and the RPS
Contribution Agreements, this Agreement shall control.
12.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument.
12.7 Liquidation. If as a result of the Trust's purchase of reverse
repurchase obligations during 1994 the Trust, pursuant to a Final Determination,
loses its ability to be taxed as a REIT under the Code, a majority of the
Continuing Trustees shall have the right to elect, within one year of such Final
Determination, to cause the Operating Partnership (subject to the approval of
the Trust's shareholders if required under applicable law and the right of first
offer set forth in Schedule 12.7) to sell or dispose of all the assets of the
Operating Partnership (which may be accomplished by merger, business
combination, direct transfer or otherwise) and liquidate the Operating
Partnership and the Trust (the "SPECIAL TAX LIQUIDATION"); provided, however,
the Continuing Trustees shall not have the right to cause a Special Tax
Liquidation to occur if by reason of the Final Determination or by right
(without any further action taken by the Trust), the Trust is entitled to elect
to be treated as a real estate investment trust under the Code for the year
immediately following the year in which such Final Determination occurs.
-62-
<PAGE> 70
12.8 Acknowledgments. (a) Ramco, the Ramco Principals, the Operating
Partnership and the Ramco Contributing Parties hereby agree that the IRS'
current ongoing examination of the Trust's tax returns and its Section 401(k)
Plan (including rollover contributions to such Plan by Joel Pashcow and Herbert
Liechtung) and any tax liability that might arise from such examination or the
Trust's purchase of reverse repurchase obligations during 1994 and 1995 shall
not constitute a breach of any representation or warranty made by the Trust
under this Agreement or be deemed (directly or indirectly) for any purpose
hereunder to constitute a failure of the Trust to satisfy any condition to
Closing under this Agreement.
(b) Except for (i) those representations and warranties that relate
to a particular date or period, (ii) the representations and warranties set
forth in Sections 4.1, 4.2, 4.3, 4.4, 5.1, 5.3, 5.4 and 5.5 which shall be
deemed made as of the date of the Original Agreement and as of the date of this
Agreement and (iii) the representation and warranties made in Section 4.5(e)
which shall be deemed made as of the date of this Agreement, the parties
acknowledge that all representations and warranties and covenants set forth in
this Agreement shall be deemed to have been made as of the date of the Original
Master Agreement.
(c) All references to Ramco-Gershenson Properties Trust, a Maryland
business trust, in the Exhibits to this Agreement shall mean Ramco-Gershenson
Properties Trust, a Massachusetts business trust (f/k/a RPS Realty Trust).
12.9 Governing Law. This Agreement and (unless otherwise provided)
all amendments hereof and waivers and consents hereunder shall be governed by
the internal laws of the State of New York, without regard to the conflicts of
law principles thereof.
-63-
<PAGE> 71
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
Agreement as of the first date written above.
RPS REALTY TRUST
By:/s/ Joel M. Pashcow
----------------------------------
Name:
Title:
S-0
<PAGE> 72
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
Agreement as of the first date written above.
RPS REALTY TRUST
By:__________________________________
Name:
Title:
RAMCO GERSHENSON, INC.
By:/s/ Dennis Gershenson
----------------------------------
Name: Dennis Gershenson
Title: Treasurer
/s/ Dennis Gershenson
----------------------------------
Dennis Gershenson
/s/ Richard Gershenson
----------------------------------
Richard Gershenson
/s/ Bruce Gershenson
----------------------------------
Bruce Gershenson
/s/ Joel Gershenson
----------------------------------
Joel Gershenson
/s/ Michael A. Ward
----------------------------------
Michael A. Ward
MICHAEL A. WARD U/T/A DATED
2/22/77, AS AMENDED
By: /s/ Michael A. Ward
-------------------------------
Michael A. Ward as trustee
U/T/A dated 2/22/77, as amended
S-1
<PAGE> 73
RAMCO-GERSHENSON PROPERTIES, L.P.
By: RAMCO REIT, INC., its
General Partner
By:/s/ Dennis Gershenson
---------------------------
Name: Dennis Gershenson
Title:
S-2
<PAGE> 74
RAMCO CONTRIBUTING PARTIES TO THE
EXTENT OF SECTIONS 1, 2, 3, 6, 7,
8, 9, 10, 11 and 12
KM BLUE ASH DEVELOPMENT COMPANY,
an Ohio co-partnership
By:/s/ Bruce Gershenson
--------------------------------
Bruce Gershenson
Partner
LA II GROUP, an Ohio general
partnership
By: RAMCO LEWIS ALEXIS ASSOCIATES,
a Michigan general partnership,
its Partner
By:/s/ Bruce Gershenson
----------------------------
Bruce Gershenson
Partner
S-3
<PAGE> 75
MICHIGAN SHOPPING CENTER VENTURES
II LIMITED PARTNERSHIP, a Michigan
limited partnership
By: RAMCO L & W PARTNERS
a Michigan co-partnership,
its General Partner
By: RAMCO CP, a Michigan
co-partnership, its Partner
By:/s/ Bruce Gershenson
------------------------
Bruce Gershenson
Partner
RAMCO CANTON CO.,
a Delaware general partnership
By: FORD SHELDON PLAZA COMPANY,
a Michigan limited partnership,
its Partner
By:/s/ Bruce Gershenson
----------------------------
Bruce Gershenson
General Partner
RAMCO FRASER DEVELOPMENT COMPANY,
a Michigan co-partnership
By:/s/ Bruce Gershenson
--------------------------------
Bruce Gershenson
Partner
S-4
<PAGE> 76
RAMCO JACKSON DELAWARE LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: RAMCO JACKSON, INC., a
Michigan corporation, its
General Partner
By:/s/ Bruce Gershenson
----------------------------
Bruce Gershenson
Vice President
RAMCO KENTWOOD ASSOCIATES a
Michigan co-partnership
By:/s/ Bruce Gershenson
--------------------------------
Bruce Gershenson
Partner
RAMCO LANSING ASSOCIATES, a
Michigan co-partnership
By:/s/ Bruce Gershenson
--------------------------------
Bruce Gershenson
Partner
RAMCO LAPEER ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited
partnership
By: RAMCO LAPEER, INC., a Michigan
corporation, its General
Partner
By:/s/ Bruce Gershenson
----------------------------
Bruce Gershenson
Vice President
S-5
<PAGE> 77
RAMCO NOVI I CO.,
a Delaware general partnership
By: WEST OAKS DEVELOPMENT COMPANY,
a Michigan co-partnership,
its Partner
By:/s/ Bruce Gershenson
----------------------------
Bruce Gershenson
Partner
RAMCO NOVI II CO.,
a Delaware general partnership
By: RAMCO NOVI DEVELOPMENT
ASSOCIATES LIMITED PARTNERSHIP,
a Michigan limited partnership,
its Partner
By: RAMCO NOVI DEVELOPMENT
COMPANY, a Michigan
co-partnership, its General
Partner
By:/s/ Bruce Gershenson
------------------------
Bruce Gershenson
Partner
RAMCO OAK BROOK SQUARE ASSOCIATES
LIMITED PARTNERSHIP, a Michigan
limited partnership
By: RAMCO OAK BROOK SQUARE, INC.,
a Michigan corporation, its
General Partner
By:/s/ Bruce Gershenson
----------------------------
Bruce Gershenson
Vice President
S-6
<PAGE> 78
RAMCO ORION CO.,
a Delaware general partnership
By: W & G REALTY COMPANY,
a Michigan co-partnership, its
Partner
By:/s/ Bruce Gershenson
----------------------------
Bruce Gershenson
Partner
RAMCO ROSEVILLE CO.,
a Delaware general partnership
By: ROSEVILLE PLAZA LIMITED
PARTNERSHIP
By: RAMCO VENTURES, a Michigan
co-partnership, its General
Partner
By:/s/ Bruce Gershenson
------------------------
Bruce Gershenson
Partner
RAMCO SINGER ASSOCIATES LIMITED
PARTNERSHIP, an Ohio limited
partnership
By: RAMCO TROY ASSOCIATES, a
Michigan co-partnership, its
General Partner
By:/s/ Bruce Gershenson
----------------------------
Bruce Gershenson
Partner
S-7
<PAGE> 79
RAMCO SOUTHFIELD CO.,
a Delaware general partnership
By: SOUTHFIELD PLAZA LIMITED
PARTNERSHIP, a Michigan limited
partnership, its Partner
By: RAMCO VENTURES, a Michigan
co-partnership, its General
Partner
By:/s/ Bruce Gershenson
------------------------
Bruce Gershenson
Partner
RAMCO STERLING MALL CO.,
a Delaware general partnership
By: STERLING MALL ASSOCIATES
LIMITED PARTNERSHIP, a Michigan
limited partnership, its
Partner
By: RAMCO CONSUMER MALL
ASSOCIATES LIMITED
PARTNERSHIP, a Michigan
limited partnership, its
General Partner
By:/s/ Bruce Gershenson
------------------------
Bruce Gershenson
General Partner
S-8
<PAGE> 80
SOUTHFIELD PLAZA LIMITED
PARTNERSHIP, a Michigan limited
partnership
By: RAMCO VENTURES, a Michigan
general partnership, its
General Partner
By:/s/ Bruce Gershenson
----------------------------
Bruce Gershenson
Partner
SPRING MEADOWS SHOPPING CENTER
ASSOCIATES, an Ohio general
partnership
By: RAMCO SPRING MEADOWS
ASSOCIATES, a Michigan
co-partnership, its Partner
By:/s/ Bruce Gershenson
----------------------------
Bruce Gershenson
Partner
WEST ALLIS SHOPPING CENTER
ASSOCIATES, a Wisconsin general
partnership
By: RAMCO ALLIS DEVELOPMENT
COMPANY, a Michigan
co-partnership, its Partner
By:/s/ Bruce Gershenson
----------------------------
Bruce Gershenson
Partner
S-9
<PAGE> 81
SCHEDULE A
Ramco Contributing Parties
KM Blue Ash Development Company
LA II Group
Michigan Shopping Center Ventures 11 Limited
Partnership
Ramco Canton Co.
Ramco Fraser Development Company
Ramco Jackson Delaware Limited Partnership
Ramco Kentwood Associates
Ramco Lansing Associates
Ramco Lapeer Associates Limited Partnership
Ramco Novi I Co.
Ramco Novi II Co.
Ramco Oak Brook Square Associates Limited
Partnership
Ramco Orion Co.
Ramco Roseville Co.
Ramco Singer Associates Limited Partnership
Ramco South Naples Development
Ramco Southfield Co.
Ramco Sterling Mall Co.
Ramco Sterling Strip Co.
Ramco Tel-Twelve Co.
Southfield Plaza Limited Partnership
Spring Meadows Shopping Center Associates
West Allis Shopping Center Associates
<PAGE> 82
SCHEDULE 1
Description of Agreements
1. Agreement dated April 10, 1995 by and between KM BLUE ASH DEVELOPMENT
COMPANY, an Ohio co-partnerships as Owner, and RAMCO-GERSHENSON
PROPERTIES, L.P., a Delaware limited partnership, as Recipient, with
respect to property known as "Blue Ash Commons" located in Blue Ash,
Ohio.
2. Agreement dated April 10, 1995 by and between LA II GROUP, an Ohio
general partnership, as Owner, and RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership, as Recipient, with respect to
property known as "Office Max" located in Toledo, Ohio.
3. Agreement dated December 29, 1994, by and between Michigan SHOPPING
CENTER VENTURES II LIMITED PARTNERSHIP, a Michigan limited
partnership, as Owner, and RAMCO-GERSHENSON PROPERTIES, L.P., a
Delaware limited partnership, as Recipient, with respect to property
known as "Ferndale Plaza" located in Ferndale, Michigan.
4. Agreement dated December 29, 1994, by and between RAMCO CANTON CO., a
Delaware general partnership, as Owner, and RAMCO-GERSHENSON
PROPERTIES, L.P., a Delaware limited partnership, as Recipient, with
respect to property known as "New Towne Plaza" located in Canton
Township, Michigan.
5.* Agreement dated December 29, 1994, by and between RAMCO FRASER
DEVELOPMENT COMPANY, a Michigan co-partnership, as Owner, and
RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership, as
Recipient, with respect to property known as "Fraser Towne Center"
located in Fraser, Michigan.
6. Agreement dated December 29, 1994, by and between RAMCO JACKSON
DELAWARE LIMITED PARTNERSHIP, a Delaware limited partnership, as
Owner, and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited
partnership, as Recipient, with respect to property known as "Jackson
Crossing" located in Jackson, Michigan.
7. Agreement dated April 10, 1995, by and between RAMCO KENTWOOD
ASSOCIATES, a Michigan co-partnership, as Owner, and RAMCO-GERSHENSON
PROPERTIES, L.P., a Delaware limited partnership, as Recipient, with
respect to a partnership interest in 28th Street Kentwood Associates,
a Michigan co-partnership, which owns property known as "Kentwood
Towne Center" located in Kentwood, Michigan.
<PAGE> 83
8.* Agreement dated December 29, 1994, by and between RAMCO LANSING
ASSOCIATES, a Michigan co-partnership, as Owner, and RAMCO-GERSHENSON
PROPERTIES, L.P., a Delaware limited partnership, AS Recipient, with
respect to property known as "Edgewood Town Center" located in
Lansing, Michigan.
9.* Agreement dated December 29, 1994, by and between RAMCO LAPEER
ASSOCIATES LIMITED PARTNERSHIP, a Michigan limited partnership, as
Owner, and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited
partnership, as Recipient, with respect to property known as
"Eastridge Commons" located in Flint, Michigan.
10. Agreement dated December 29, 1994, by and between RAMCO NOVI I CO., a
Delaware general partnership, as Owner, and RAMCO-GERSHENSON
PROPERTIES, L.P., a Delaware limited partnership, as Recipient, with
respect to property known as "West Oaks 1" located in Novi, Michigan.
11. Agreement dated December 29, 1994, by and between RAMCO NOVI II CO.,
a Delaware general partnership, as Owner, and RAMCO-GERSHENSON
PROPERTIES, L.P., a Delaware limited partnership, as Recipient, with
respect to property known as "West Oaks II" located in Novi,
Michigan.
12.* Agreement dated December 29, 1994, by and between RAMCO OAK BROOK
SQUARE ASSOCIATES LIMITED PARTNERSHIP, a Michigan limited
partnership, as Owner, and RAMCO-GERSHENSON PROPERTIES, L.P., a
Delaware limited partnership, as Recipient, with respect to property
known as "Oak Brook Square" located in Flint, Michigan.
13. Agreement dated December 29, 1994, by and between RAMCO ORION CO., a
Delaware general partnership, as Owner, and RAMCO-GERSHENSON
PROPERTIES, L.P., a Delaware limited partnership, as Recipient, with
respect to property known as "Lake Orion Plaza" located in Lake
Orion, Michigan.
14. Agreement dated December 29, 1994, by and between RAMCO ROSEVILLE
CO., a Delaware general partnership, as Owner, and RAMCO-GERSHENSON
PROPERTIES, L.P., a Delaware limited partnership, as Recipient, with
respect to property "Roseville Plaza" located in Roseville, Michigan.
15. Agreement dated April 10, 1995, by and between RAMCO SINGER
ASSOCIATES LIMITED PARTNERSHIP, an Ohio limited partnership, as
Owner, and CO-GERSHENSON PROPERTIES, L.P., a Delaware limited
partnership, as with respect to property known as "Troy Towne Center"
located in Troy, Ohio.
16. Agreement dated April 10, 1995, by and between RAMCO SOUTH NAPLES
DEVELOPMENT, a Florida general partnership, as Owner, and
<PAGE> 84
RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership, as
Recipient, with respect to property known as "Naples Towne Center"
located in Naples, Florida.
17. Agreement dated December 29, 1994, by and between RAMCO SOUTHFIELD
CO., a Delaware general partnership, as Owner, and RAMCO-GERSHENSON
PROPERTIES, L.P., a Delaware limited partnership, as Recipient, with
respect to property known as "Southfield Plaza" located in
Southfield, Michigan.
18. Agreement dated December 29,1994, by and between RAMCO STERLING MALL
CO., a Delaware general partnership, as Owner, and RAMCO-GERSHENSON
PROPERTIES, L.P., a Delaware limited partnership, as Recipient, with
respect to property known as "Clinton Valley Mall" located in
Sterling Heights, Michigan.
19. Agreement dated December 29, 1994, by and between RAMCO STERLING;
STRIP CO., a Delaware general partnership, as Owner, and
RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership, as
Recipient, with respect to property known as "Clinton Valley Strip"
located in Sterling Heights, Michigan.
20. Agreement dated December 29, 1994, by and between RAMCO TEL-TWELVE
MALL, a Delaware general partnership, as Owner, and RAMCO-GERSHENSON
PROPERTIES, L.P., a Delaware limited partnership, as Recipient, with
respect to "Tel-Twelve Mall" located in Southfield, Michigan.
21. Agreement dated April 10, 1995, by and between SOUTHFIELD PLAZA
LIMITED PARTNERSHIP, a Michigan limited partnership, as Owner, and
RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership, as
Recipient, with respect to a partnership interest in S-12 Associates,
a Michigan co-partnership, which owns property known as "Southfield
Plaza Expansion" located in Southfield, Michigan.
22. Agreement dated April 10, 1995 by and between SPRING MEADOWS SHOPPING
CENTER ASSOCIATES, an Ohio general partnership, as Owner, and
RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership, as
recipient, with respect to property known as "Spring Meadows Shopping
Plaza" located in Holland, Ohio.
23. Agreement dated April 10, 1995, by and between WEST ALLIS SHOPPING
CENTER ASSOCIATES, a Wisconsin general partnership, as Owner, and
RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership, as
Recipient, with respect to property known as "West Allis Towne
Center" located in West Allis, Wisconsin.
- --------------
*Direct Transfer Ramco Properties
<PAGE> 85
SCHEDULE, 1.1(b)
LIST OF DEVELOPMENT LAND, OUTPARCELS AND OPTIONS
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>
Options
Bowling Green Ohio Property Bowling Green, OH
Canton Township, Ford and Lotz Road Canton, OH
Jackson West Jackson, MI
Bennett Property Toledo, OH
Hoen/Holloway Property Toledo, OH
Roth Property Toledo, OH
Saba Property Toledo, OH
Telegraph and Gooddard Road Taylor, MI
West Oaks III Novi, MI
Spring Meadows Phase III Toledo, OH
Shelby Township - Hall Road Shelby Township, MI
<PAGE> 86
SCHEDULE 1.2
RPS PROPERTIES
Crofton Plaza Shopping Center
Crofton, Maryland
Sunshine Plaza Shopping Center
Tamarac, Florida
Commack Shopping Center
Commack, New York
Trinity Shopping Center
Pound Ridge, New York
Lantana Shopping Center
Lantana, Florida
Chester Shopping Center
Chester, New Jersey
<PAGE> 87
SCHEDULE 1.5(e)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Minimum Monthly
Square Rent/CAM/Real OP Units
Tenant Feet Estate Tax Allocated Right to Terminate Lease Event that Triggers Release from Escrow
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Toys R Us 32,667 $16,333.50 Tenant has right to (i) At any time from Closing through
1,960.02 terminate if at any time 12/1/95, if greater than 70% of the
3,380.17 after 8/11/94 more than Shopping Center is leased and operated
---------- 30% of the gross by tenants, or (ii) after 12/1/95, at
$21,673.69 10,968 leasable area of the such time as greater than 70% of the
Shopping Center Shopping Center is leased and operated
(excluding Tenant), are by tenants, if Tenant's Gross Sales for
not operating for a the immediately preceding twelve-month
period of one year, and period ("Sales Period") are 86% or more
during such one-year than for the twelve-month period
period Tenant's gross immediately prior to the Sales Period.
sales decrease by 15% or
more below the gross
sales level of the
preceding 12-month
period.
- ---------------------------------------------------------------------------------------------------------------------------------
Dunn's 4,777 $3,682.27 Tenant has right to (i) At any time from Closing to 3/1/96,
Gift 1,2472.02 terminate upon 90 days if the PharMor premises is opened and
Bo-Kay 728.49 notice if (i) the operated as a PharMor, a similar
--------- premises operated as a business or a department store, or (ii)
$5,652.78 2,861 PharMor is not operated if Tenant shall have failed to give
as a PharMor, as a notice of termination by 1.1.96,
similar business or a provided that in the case of either (i)
department store; or or (ii), 50% of the gross leasable
(ii) more than 50% of first floor area of Retail A, B, C and
the gross leasable first D is then leased and operated.
floor area of Retail A,
B, C and D is not or
ceases to be leased and
occupied, and either
such condition continues
for one year, provided
that the condition
continues through
termination.
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
________________________________
Semi-annual tax payments of $20,281 each
.
<PAGE> 88
SCHEDULE 1.5(e)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Minimum Monthly
Square Rent/CAM/Real OP Units
Tenant Feet Estate Tax Allocated Right to Terminate Lease Event that Triggers Release from Escrow
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Braun's 3,161 $2,634.17 Tenant has a right to (i) At any time from Closing through
Fashions 761.27 terminate if (i) the 6/1/96, if the PharMor premises is
516.30 premises of Major B opened and operated as a PharMor, or as
--------- (PharMor) are not an anchor store, or (ii) for the period
$3,911.74 1,980 operated as a PharMor 12/1/94 through 11/30/95 ("Sales
store or as an anchor Period"), if Tenant's Gross Sales are
store, and (ii) such equal or greater than for the twelve-
condition continues for month period immediately prior to the
one year, and (iii) Sales Period, or (iii) if Tenant shall
Tenant's Gross Sales have failed to give notice of
during the said twelve- termination by 3/1/96.
month period are less
than those in the
previous twelve-month
period.
- ---------------------------------------------------------------------------------------------------------------------------------
Dots 3,000 $2,375.00 Tenant has a right to (i)At any time from Closing through
722.50 terminate if (i) the 3/1/96, if the PharMor premises is
430.00 Major B premises is not opened and operated as a PharMor, a
--------- or ceases to be operated similar business or a department store
$3,527.50 1,785 as a PharMor store, or or (ii) if Tenant shall have failed to
as a business similar to give notice of termination by 1/1/96.
a PharMor store, or as a
department store, and
(ii) such condition
continues for a period
of one-year.
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 89
SCHEDULE 1.5(e)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Minimum Monthly
Square Rent/CAM/Real OP Units
Tenant Feet Estate Tax Allocated Right to Terminate Lease Event that Triggers Release from Escrow
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Payless 2,775 $2,775.00
Shoe 1,031.38 Tenant has a right to (i) At any time from Closing through
Source 448.63 terminate if (i) the 12/1/95, if the PharMor premises are
--------- premises of Major B leased and operated, or (ii) for the
$4,255.01 2,153 (PharMor) is not open period 12/1/94 through 11/30/95 ("Sales
for business and such Period"), if Tenant's Gross Sales are
condition continues for 80% or more than for the twelve-month
a twelve-month period, period immediately prior to the Sales
and (ii) Tenant's Gross Period, or (iii) if Tenant shall have
Sales for such twelve- failed to give notice of termination by
month period decrease by 1/1/96.
more than 20% compared
with the immediately
preceding twelve-month
period.
- ---------------------------------------------------------------------------------------------------------------------------------
Disc 2,800 $3,033.33 Tenant has a right to (i)At any time from Closing through
Jockey 926.33 terminate if (i) less 3/1/96, if more than 60% of the gross
401.33 than 60% of the leasable leasable area of Retail A, B, C and D
--------- area of the Retail A, B, are leased and operated, or (ii) if
$4,360.99 2,207 C and D is operated, and Tenant shall have failed to give notice
(ii) the condition of termination by 1/1/96.
continues for one year,
upon three months
written notice, provided
that such condition
continues through the
notice period.
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 90
SCHEDULE 1.6(b)
RAMCO-GERSHENSON PROPERTIES, L.P.
27600 NORTHWESTERN HIGHWAY
SUITE 200
SOUTHFIELD, MICHIGAN 48034
, 1995
--------------------
[NAME OF OWNER]
27600 Northwestern Highway
Suite 200
Southfield, Michigan 48034
Re: [NAME OF PROPERTY]
Ladies and Gentlemen:
This letter will confirm that, notwithstanding anything to the contrary
contained in that certain Agreement dated December 29, 1994, between the
undersigned, as Recipient, and you, as Owner (the "Agreement"), you and the
undersigned agree that:
(A) you are no longer bound by, and are hereby released from any
obligation or liability which you would otherwise incur as a result of,
the representation made by you in the last sentence of Section 9(1)(3) of
the Agreement; and
(B) the Term "Indemnity Collateral' as used in the Agreement shall
mean: (i) the Operating Partnership Interests (including OP Units) and
Shares acquired directly or indirectly by the Ramco Group (but not any
other partners of Owner) in connection with the payment of the
consideration by Recipient under this Agreement, and the other related
agreements between the Ramco Entities and the Recipient, (ii) any Shares
received by the Ramco Group (but not any other partners of Owner) as a
result of the exchange of OP Units for Shares; and (iii) distributions,
share splits or other securities received with respect to the Shares or
OP Units described in clauses (i) and (ii) above.
<PAGE> 91
- -----------------------------
,1995
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Page 2
Please indicate your acknowledgement of the foregoing by signing below.
RAMCO-GERSHENSON PROPERTIES, LP., a
Delaware limited partnership
By: Ramco REIT, Inc.,
a Delaware corporation,
general partner
By:_______________________________
Richard Gershenson
Vice President
The undersigned acknowledges the foregoing letter.
---------------------------------------,
a
-----------------------------
By:
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<PAGE> 92
SCHEDULE 1.7(a)(i)
PharMor Space Units = (NOI / CR) - (AA + I)
---------------------
OPV
Where:
NOI = The annualized net operating income attributable to the
Qualifying Lease that is the subject of the PharMor Space (including a
straightlining of any additional common area maintenance and real estate tax
reimbursements at the Jackson Crossing Property directly attributable to such
lease and after taking into account all incremental increases in expenses at
the Jackson Crossing Property attributable to such lease that are consistently
applied to historical amounts during the most recent calendar year) on the date
the tenant under such lease begins paying rent.
CR = The applicable capitalization rate of 12.35% (expressed as a
decimal fraction).
AA = The sum of expenses incurred or advanced by the Operating
partnership (including amounts reimbursed to Ramco Jackson Delaware Limited
Partnership or its Affiliates under the Ramco Agreements) that are attributable
to the Qualifying Lease that is the subject of the PharMor Space.
I = Interest on AA (calculated from the date such amounts were
advanced until the date the tenant under the Qualifying Lease that is the
subject of the PharMor Lease begins paying rent) at an annual rate equal to the
greater of (i) 10% per annum and (ii)a floating rate per annum equal to the
prime rate of the Bank of Boston plus 2%.
OPV = the meaning set forth in Section 8.
<PAGE> 93
SCHEDULE 1.7(a)(i)(A)
PharMor Repurchase Units = (NJN / CR) + D
--------------
OPV
Where:
NJN = The dollar amount of Negative Jackson NOI (expressed for
purposes of this calculation as a positive number).
CR = The applicable capitalization rate of 12.35% (expressed as a
decimal fraction).
D = The dollar amount of distributions or dividends paid in respect of
the PharMor Space Units (or any Shares issued in connection with the exchange
of such units) between the Closing Date and March 31, 1997.
OPV = The meaning set forth in Section 8.
<PAGE> 94
SCHEDULE 1.7(a)(ii)
OP Units = (NOI / CR) - (AA + I)
---------------------
OPV
Where:
NOI = The annualized stabilized net operating income from the Jackson Crossing
Property from Qualifying Leases during the period from January 1, 1997 through
and including March 31, 1997 (computed in a manner consistent with the
preparation of the Operating Partnership's or the Trust's regularly prepared
financial statements, except that all management, development, and leasing fees
and commissions shall be excluded from the calculation and all common area
maintenance and real estate tax reimbursements and percentage rents shall be
straight lined) ("Stabilized Jackson Income") minus the sum of (i) the net
operating income from the Jackson Crossing Property for the 12 months ending
December 31. 1994, as adjusted to reflect contractual increases in base rents
during the period from January 1, 1995 through December 31, 1995 attributable
to Qualifying Leases existing at the Jackson Crossing Property at December 31,
1994, less any net operating income attributable to any lease set forth on
Schedule 1.5(e) that was reflected on the Updated Distribution Pro Forma if at
any time prior to March 31, 1997 any such lease is terminated as a result of
the lease termination provisions set forth on such Schedule, (ii) the
annualized positive impact on Stabilized Jackson Income that is attributable to
any automatic fixed minimum rent escalations that had become effective during
the period from January 1, 1996 through March 31, 1997 and relate to Qualifying
Leases existing at the Jackson Crossing Property as at December 31, 1994, (iii)
percentage rents included in Stabilized Jackson Income in excess of the
percentage rents taken into consideration in computing net operating income
from the Jackson Crossing Property for the twelve months ending December 31,
1994 with respect to Qualifying Leases in place as of December 31, 1994;
provided, however, Stabilized Jackson Income with respect to any Qualifying
Lease entered into after December 31, 1994 shall be further reduced by the
amount by which tenant improvements and tenant allowances in such lease
(calculated by amortizing such amount over the initial term of the lease)
exceed the product of (a) the per square foot average of such improvements and
allowances at the Jackson Crossing Property during the year ended December 31,
1994 for the type of tenant which is the subject of such lease and (b) the
number of square feet covered by such lease.
CR = the applicable capitalization rate of 12.35% (expressed as a decimal
fraction)
AA = the sum of all expenses incurred or advanced by the Operating Partnership
(including, amounts reimbursed to Jackson Delaware Limited Partnership or its
Affiliates under the Ramco Agreements) that are attributable to periods from
and after January 1, 1995 through and including March 31, 1997 for capital
expenditures relating to new tenants, tenant improvements, tenant allowances
and leasing costs at the Jackson Crossing Property.
<PAGE> 95
I = interest on AA (calculated from the date such amounts were advanced until
March 31, 1997) 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 = The meaning set forth in Section 8.
<PAGE> 96
SCHEDULE 1.8(d)
Trustees and Executive Officers of
the Trust Immediately Following Closing
Trustees
Herbert Liechtung
Joel Pashcow
Arthur Goldberg
Stephen Blank
Dennis Gershenson
Joel Gershenson
Two Independent Trustees referred to in Section 3.10 of the Master Agreement
One existing Trustee or Independent Trustee appointed by the Trust
Executive Officers
Joel Gershenson - Chairman
Dennis Gershenson - President and Chief Executive Officer
Richard Gershenson - Executive Vice President and Secretary
Bruce Gershenson - Executive Vice President and Treasurer
Michael Ward - Executive Vice President and Chief Operating Officer
<PAGE> 97
SCHEDULE 1.8(e)
Director
Richard Burstein
Officers
Bruce Gershenson - President and Treasurer
Al Maximiuk - Vice President and Secretary
<PAGE> 98
SCHEDULE 1.9
Actions to be Taken with Respect to Benefit
Plans Prior to or Simultaneous With Closing
Trust Plans
1. Intentionally Omitted.
2. Upon Closing, or as soon as practicable thereafter, the RPS Realty Trust
medical, dental, group life and 401k plans will be terminated, or in the
case of the 401k plan, merged with the Surviving Trusts 401k plan.
Ramco Plans
None.
<PAGE> 99
SCHEDULE 1.10
Liabilities
1. Non-monetary obligations (but including indemnity obligations) under any
termination agreement that is entered into with Herbert Liechtung and/or
Joel M. Pashcow pursuant to Section 6.27 of the Master Agreement.
2. Liabilities for breaches of representations, warranties, covenants and
agreements that are included in sales agreements that are customary to
sales of participating mortgage loans or real estate properties, as
applicable (as determined in good faith by the Trust) relating to the sale
of the RPS Mortgage Assets prior to Closing.
3. Indemnity obligations under the engagement letter between the Trust and
Dean Witter dated as of June 8, 1994.
4. Indemnity obligations under the engagement letter between the Trust and
Arthur Andersen LLP dated July 8, 1994 with respect to the appraisals on
the RPS Properties.
5. Indemnity obligations under the engagement letter between the Trust and
Kenneth Leventhal & Co. dated July 29, 1994.
6. Indemnity obligations under the engagement letter between the Trust and
Marvin Kenigsberg.
7. Obligations under the Trust's employment agreements with Herbert Liechtung
and Joel M. Pashcow.
<PAGE> 100
Schedule 1.14
A = ER divided by CR
Where:
ER = Annualized 1995 electric net revenue from the applicable Michigan Property
as shown on or included as part of the Updated Distribution Pro Forma.
CR = The applicable capitalization rate of 12.35% (expressed as a decimal
fraction).
A = The amount of the Ramco Principals obligation with respect to such Michigan
Property.
<PAGE> 101
SCHEDULE 3.1 (e)
RPS Mortgage Assets
Mortgage Loans
SHOPPING CENTERS/RETAIL:
Holiday Park Merrick, NY
Branhaven Plaza Branford, CT
Madison Heights Madison Hts, MI
1733 Mass. Ave. Lexington, MA
Mt. Morris Commons Genessee Twp, MI
Copps Hill Plaza Ridgefield, CT
Hylan Center Staten Island, NY
OFFICE BUILDINGS:
NCR Building Century City, CA
NE Telephone Manchester, NH
Wabash Avenue Chicago, IL
Woodbridge Center Woodbridge, NJ
INDUSTRIAL/COMMERCE:
Simmons Mfg. Jacksonville, FL
OTHER MORTGAGES:
Rector NYC, NY
Shopping Center Properties
9 North Wabash Building, Chicago, Illinois
Norgate Shopping Center, Indianapolis, Indiana
Other Assets
Madison North Wabash Corp. partnership interest
Furniture, fixtures and equipment.
The assets referred to in Section 1.10(b) of the Master Agreement.
<PAGE> 102
SCHEDULE 3.2
CONSENTS NEEDED FROM PARTNERS
OF RAMCO CONTRIBUTING PARTNERS
The following partnerships require consents of non-Ramco Partners:
1. Ramco Novi Development Associates Limited Partnership
- Kefco Novi Associates, a Michigan co-partnership
2. Sterling Mall Associates Limited Partnership
- Sondra L. Berlin Revocable Living Trust (Sondra L. Berlin, Trustee)
- Florine Mark Revocable Living Trust (Florine Mark, Trustee)
3. Spring Meadows Shopping Center Associates
- JCP Realty, Inc., a Delaware corporation
4. West Allis Shopping Center Associates
- A-C Reorganization Trust
5. Ramco Singer Associates Limited Partnership
- Harold Singer
6. West Oaks Development Company
- Aaron H. Gershenson Residuary Trust
7. W & G Realty Company
- either Aaron H. Gershenson Residuary Trust or William Gershenson
Residuary Trust
8. KMW Sterling Development Company
- either Aaron H. Gershenson Residuary Trust or William Gershenson
Residuary Trust
9. Ford-Sheldon Plaza Company
<PAGE> 103
- either Aaron H. Gershenson Residuary Trust or William Gershenson
Residuary Trust
<PAGE> 104
SCHEDULE 3.2(c)
(212) 856-7000
(212) 339-9151
November __, 1995
RPS Realty Trust
747 Third Avenue
New York, New York 10017
Re: Treasury Bill Reverse
Repurchase Agreements
Gentlemen:
You have requested our opinion as to whether the short-term reverse
repurchase agreements described below ("Repos") invested in by RPS Realty Trust
("RPS"), a real estate investment trust, are "qualified assets" (defined below)
under Section 856(c)(5)(A) of the Internal Revenue Code of 1986, as amended (the
"Code"). Section 856(c)(5)(A) requires that at the close of each quarter of the
taxable year of a real estate investment trust ("REIT") at least 75 percent of
the value of the REIT's total assets (the "75 percent asset test") must be
represented by real estate assets, cash and cash items, and Government
securities ("qualified assets").
As explained in greater detail below, it is our opinion that, for all
periods during which RPS held such Repos, the Repos described below will be
treated as qualified assets under Section 856(c)(5)(A). Our opinion is based
upon (i) the provisions of the Code and administrative rulings issued
thereunder; and (ii) the provisions of the Investment Company Act of 1940 (the
"1940 Act") and rules and regulations and certain No-action letters issued
thereunder, all as in effect as of the date of this opinion, all of which are
subject to change either prospectively or retroactively and may alter our
opinion if changed. As to questions of fact material to our opinion, we have
relied, without any independent investigation thereof, and with your consent,
upon the representations made to us by you. No opinion on any matter not
expressly discussed herein should be inferred from the opinions set forth
herein.
Our opinion is not binding upon the Internal Revenue Service ("IRS").
If, notwithstanding our opinion, the IRS were to be successful in a contention
that the Repos were not qualified assets under Section 856(c)(5)(A), RPS would
lose its REIT status for any year in which more than 25 percent of the
<PAGE> 105
value of its assets, at the end of any quarter of the taxable year, is
represented by the Repos described below and any other non-qualified assets
owned by it. Further, our opinion applies only to Repos having the
characteristics noted herein. We note that a different conclusion than the
conclusion reached herein could be reached with respect to Repos having
different characteristics.
FACTS
Starting in early 1990, RPS began investing in short-term United
States Treasury Bill ("U.S. Treasuries") repurchase transactions. We have been
advised that Bankers Trust, as agent for clients such as RPS, acquired U.S.
Treasuries from a dealer in such securities (such as Merrill Lynch or Goldman
Sachs) and allocated such securities to its clients' accounts. Such acquisitions
were pursuant to standard industry practice and required the dealers to
repurchase such securities, generally within one to three days later, for the
original purchase price plus an amount that represented a market rate of
interest. As of September 30, 1994, over 25 percent of the value of RPS's assets
were invested in Repos.(1)
In connection with its investments in Repos, RPS has represented
that:
(i) the value of the U.S. Treasuries it acquired was at all times
at least equal to the resale price;(2)
(ii) RPS was the registered holder of the U.S. Treasuries under a
book entry system;
(iii) RPS had an unqualified right to possess and sell the U.S.
Treasuries in the event of default;
(iv) the collateral consisted solely and exclusively of U.S.
Treasuries; and
(v) RPS purchased Repos as an integral part of its cash management
activities and not as part of an overall investment strategy.
DISCUSSION
If the Repos were determined not to constitute qualified assets under
Section 856(c)(5)(A), the status of RPS as a REIT in 1994 would be jeopardized
because, as described above, for the quarter ended September 30, 1994, over 25
percent of the value of RPS' assets were invested in Repos. The Repos will
constitute qualified assets, and RPS will satisfy the 75 percent asset test, if
the Repos are treated either as Government securities or as cash or cash items.
1. Classification of Repos as Government Securities
The term "Government security" is not defined in the Code for
purposes of the 75 percent asset test. However, Section 856(c)(6)(F) of the Code
provides that all terms used in the REIT provisions
- ------------------------
1. This was the only quarter in which RPS' investments in Repos exceeded more
than 25 percent of the value of its total assets.
2. In fact, the fair market value of the Treasury Bills was 102 percent of
the repurchase amount.
<PAGE> 106
of the Code that are not defined in Section 856(c)(6) shall have the same
meaning as when used in the 1940 Act. The term "Government security" is defined
in the 1940 Act and in administrative interpretations issued thereunder.
A. SEC Position
(i) Money Market Diversification Rule
"Government security" is defined by Section 2(a)(16) of the 1940 Act
as "any security issued or guaranteed as to principal or interest by the United
States,..., or any certificate of deposit for any of the foregoing." Rule
2a-7(c)(4)(i) under the 1940 Act, as amended in 1991, provides that for purposes
of the diversification requirements for money market funds, a repurchase
agreement is deemed to be an acquisition of the underlying securities, as long
as the obligation of the seller to repurchase is "collateralized fully."
Accordingly, a repurchase agreement with respect to Government securities is
treated as a Government security if the terms of the repurchase agreement
satisfy the requirements of Rule 2a-7.
Four requirements must be satisfied in order for a repurchase
agreement to be considered to be "collateralized fully":
1) the value of the securities that collateralize the repurchase
transaction must at all times be at least equal to the resale
price in the repurchase agreement;
2) the fund must either have physical possession of the
securities or be the registered holder under a book-
entry system;
3) the fund must have an unqualified right to possess and sell the
securities in the event of a default; and
4) the collateral must consist entirely of Government
securities or certain other high-rated securities.
As noted above, at all times the Treasury Bills held by RPS as the
sole and exclusive collateral for the Repos equaled at least 102 percent of the
repurchase amount, were registered in RPS' name under a book entry system and
were subject at all times to RPS' right to possess and to sell the collateral in
the event of default. Furthermore, the Treasury Bills satisfy the definition of
Government security in Section 2(a)(16) of the 1940 Act. Therefore, under rule
2a-7(c)(4)(i), RPS is treated as owning the underlying Treasury Bills.
(ii) SEC Releases and No-Action Letters
Set forth below are SEC releases and no-action letters which support
the position that RPS should be viewed as owning Government securities. We have
also noted contrary SEC authority in a no-action letter, which concludes that
repurchase agreements involving Government securities are loans. However, as
discussed below, we believe that the facts involved in the contrary no-action
letter are distinguishable from the facts applicable to the Repos.
<PAGE> 107
In adopting a no-action position regarding investment funds which
invested in repurchase obligations with broker-dealers,(3) the SEC reasoned that
an investment company would look to the intrinsic value of the collateral rather
than the credit-worthiness or other risks associated solely with the business
operations of the broker-dealer.(4) In Hewlett-Packard Finance Company,(5) the
SEC adopted a no-action position permitting a finance subsidiary to invest a
portion of its working capital in repurchase agreements collateralized with
underlying U.S. Government securities, even though under rule 3a-5(a)(6), a
finance subsidiary is not permitted to invest in, reinvest in, own hold or trade
securities other than, inter alia, Government securities.
In J.P. Morgan Structured Obligations Corporation,(6) the SEC was
asked to treat a purchase of notes issued by a trust, which owned Government
securities, as an investment in the Government securities themselves, under the
authority of Rule 2a-7(c)(4)(i). The SEC refused because in certain instances
payments from a third party could be required in order to provide additional
collateral. In stating that "repurchase agreements are relatively standardized,
widely-accepted instruments that have a long history of use in the short-term
capital markets," the SEC noted that the risks presented by the trust notes
appeared to be significantly different from those presented by repurchase
agreements. The situation in J.P. Morgan is far different than RPS' Repo
transactions, where the U.S. Treasury Bills were the sole and exclusive
collateral.
In Baker, Watts & Co.,(7) the SEC examined whether a repurchase
agreement was a security for purposes of Section 3(a)(3) of the 1940 Act. The
SEC was of the view that a retail repurchase agreement is a bank debt instrument
and therefore a security, while a wholesale repurchase agreement (i.e., one in
which it is usual for the lender to acquire title to the collateral) involves
the acquisition of a Government security.
- ------------------------
3. Section 12(d)(3) of the 1940 Act prohibits an investment company from
acquiring any security issued by a broker-dealer.
4. See Investment Company Act Release No. 13,005, 48 Fed. Reg. 5894 (February
9, 1983). Because of the insolvency of some large issuers of repurchase
transactions and the uncertain status of repurchase obligations under the
Bankruptcy Code, the SEC subsequently amended its no-action position in
1983 to also require that investment company boards of directors evaluate
the creditworthiness of the brokers or dealers with which they propose to
enter in repurchase transactions. Id.
5. Hewlett Packard Finance Co., SEC No-Action Letter, 1992 SEC No-Act LEXIS
1041 (October 7, 1992)(LEXIS, Fedsec library, Noact file).
6. J. P. Morgan Structured Obligations Corp., SEC No-Action Letter [1994-1995
Transfer Binder] Fed. Sec. L. Rep. (CCH) section 76,906 at 78,621 (July
27, 1994).
7. Baker, Watts & Co., SEC No-Action Letter, [1982 Transfer Binder] Fed. Sec.
L. Rep. (CCH) section 77,225 at 77,992 (May 6, 1982).
<PAGE> 108
In The Prospect Group, Inc.,(8) the SEC stated its belief that
repurchase agreements involving government securities were loans for purposes of
Rule 3a-1. Rule 3a-1 permits exemption from investment company status if no more
than 45 percent of an issuer's total assets consist of, and no more than 45
percent of its income is derived from, securities other than Government
securities. The SEC based its conclusion on Section 2(a)(23) of the 1940 Act,
which defines "lend" to include "a purchase coupled with an agreement by the
vendor to repurchase."
As noted above, section 856(c)(5)(A) contains the diversification
requirements applicable to REITs. Accordingly, the SEC's view of repurchase
transactions as promulgated in the amendment to Rule 2a-7(c)(4)(i) in 1991
should be applied to the Repos because Rule 2a-7(c)(4)(i) deals with portfolio
diversification requirements, whereas Rule 3a-1, analyzed in Prospect Group,
Inc., supra, is a broad definition of "investment company."(9) Further, the
SEC's position in The Prospect Group, Inc. predates the 1991 amendment to Rule
2a-7(c)(4) and its 1992 no-action letter position in Hewlett Packard Finance
Company, supra.
B. IRS Position
In Revenue Ruling 77-59, 1977-1 C.B. 196, the IRS ruled that
short-term repurchase agreements with a bank collateralized with United States
Treasury obligations or certain other collateral were neither Government
securities nor cash items for purposes of Section 856(c)(5)(A), but rather were
loans to a bank secured by the Treasury obligations or other collateral.
However, unlike the Repo transactions entered into by RPS, the REIT in Rev. Rul.
77-59 had no specific security credited to its account and the securities were
not marked in any manner to indicate that they were owned by anyone other than
the other party to the repurchase agreement. Accordingly, the holding in Rev.
Rul. 77-59 was based on facts different from those involved in the Repos and can
be distinguished from the Repos. Moreover, Revenue Ruling 77-59 was issued prior
to the 1991 amendment of rule 2a-7(c)(4)(i) of the 1940 Act(10). Accordingly,
the ruling in Rev. Rul. 77-59 that repurchase agreements are not Government
securities should be viewed as obsolete, because the controlling law has changed
and in any event does not govern the Repos because the facts involved in Rev.
Rul. 77-59 are distinguishable from the Repos.(11)
- ------------------------
8. The Prospect Group, Inc., SEC No-Action Letter, [1989 Transfer Binder]
Fed. Sec. L. Rep. (CCH) section 78,924 at 78,615 (November 29, 1988).
9. Moreover, Section 5(b) of the 1940 Act defines a "diversified company" in
exactly the same terms as the 75 percent asset test of Code Section
856(c)(5)(A), other than the requirement to invest in real estate.
10. The SEC released the amendment to rule 2a-7 of the 1940 Act relating to
repurchase agreements on February 20, 1991, to be effective June 1, 1991.
Revisions to Rules Regulating Money Market Funds, Exchange Act Release No.
6882, [1990- 1991 Transfer Binder], Fed. Sec. L. Rep. (CCH) PP 84,710
(Feb. 27, 1991).
11. As described above, the definition of repurchase agreements found in rule
2a-7(c)(4)(i) of the 1940 Act is controlling, as directed by Code Section
856(c)(6)(F). The fact that in Private Letter Ruling 9125038 (Mar. 27,
1991) the IRS ruled, consistent with its ruling in Rev. Rul.
(continued...)
<PAGE> 109
C. Supreme Court
In Nebraska Department of Revenue v. Loewenstein, 115 S. Ct. 557
(1994), the Supreme Court held that a mutual fund which entered into a
repurchase transaction was not to be viewed as owning the underlying federal
securities but as having made a loan to the holder of such securities for
purposes of state taxation of the interest income. The Supreme Court did not
dispute the contention of the mutual fund that repos are treated as purchases
and sales for purposes of federal securities law, bankruptcy law, banking law as
well as commercial and local government law or any other body of law but limited
its holding to characterizing the interest as taxable or tax-exempt for Nebraska
state law purposes. Furthermore, nothing in the Supremacy Clause of the
Constitution or other applicable law directed the Court to consider the
provisions of the 1940 Act. Accordingly, the Court's holding in Nebraska
Department of Revenue is not applicable to the determination whether the Repos
should be viewed as Government securities for purposes of the 75 percent asset
test.(12)
2. Classification of Repos as Cash Items
As noted above, under the 75 percent asset test of Section
856(c)(5)(A), qualified assets include "cash and cash items," as well as
Government securities. The term "cash and cash items" is not defined in the Code
for purposes of the 75 percent asset test. However, Section 856(c)(6)(F)
provides that all undefined terms used in the REIT provisions of the Code shall
have the same meaning as when used in the 1940 Act. Although the term "cash and
cash items" is not defined in the 1940 Act, the SEC has addressed the meaning of
this term administratively, and pursuant to Code Section 856(c)(6)(F), the
meaning given to this term by the SEC under the 1940 Act should be the meaning
of this term for purposes of the Code.
In Release No. IC-10937 (November 13, 1979), the SEC announced Rule
3a-1 under Section 3(a)(3) of the 1940 Act, which provides an exception to
investment company status for certain entities that have more than 40 percent of
their assets invested in investment securities (and are therefore prima facie
investment companies), but which the SEC concluded should not be so classified.
Rule 3a-1 provides that whether certificates of deposit are cash items or
investment securities depends on the purpose for which such interests are held,
the circumstances under which they were acquired, the length
- ------------------------
11.(...continued)
77-59, that Repos secured by Treasury securities were not Government
securities for purposes of Section 817(h) and the regulations thereunder
does not require a different conclusion. Section 817(h) contains the asset
diversification requirements for life insurance companies, which are
similar to the REIT diversification rules of Section 856(c)(5)(A).
However, although PLR 9125038 was issued after the SEC released the
amendment to rule 2a-7 on February 20, 1991, the effective date of the
amendment to Rule 2a-7 was June 1, 1991, approximately two months after
the issuance of PLR 9125038. PLR 9125038 gives no indication that either
the taxpayer or the IRS was aware of, or considered, the release of the
amendment to Rule 2a-7. Moreover, it might have been inappropriate for the
IRS to take into account the amendment to Rule 2a-7 in its ruling before
such amendment was effective.
12. The Supreme Court cited Rev. Rul. 77-59 in a footnote. The ruling had no
impact on its substantive decision and the Court expressed no opinion on
whether the ruling was a proper application of the 75 percent asset test.
<PAGE> 110
of the period for which they are held, the amount held in comparison to the
company's other assets, and any other "special circumstances." For example,
certificates of deposit purchased as an integral part of an operating business
- -- such as during a transition between lines of business or as a result of
seasonal liquidity requirements -- may be treated as cash items. When it cannot
be shown conclusively that the operating business requires substantial liquid
assets, however, such deposits may be considered investment securities for
purposes of Section 3(a)(3).
Applying the SEC's approach in IC-10937 to the Repos, since RPS
acquired the Repos for operational cash management purposes and not for
investment purposes, the Repos should be viewed as cash items and not as
investment securities.
Prior to the SEC's 1979 interpretation, the IRS itself published a
number of administrative pronouncements on the issue whether a particular item
qualified as "cash or cash items". In general, these administrative
pronouncements contain little analysis and are therefore difficult to reconcile.
For example, in Revenue Ruling 77-59, supra, the IRS, without any analysis of
the issue, ruled that repurchase agreements involving Treasury securities and
other collateral were not cash items for purposes of Section 856(c)(5)(A).(13)
In Revenue Ruling 72-171, 1972-1 C.B. 203, the IRS ruled on the
status of banker's acceptances for purposes of the 75 percent asset test. A
banker's acceptance is an instrument used to facilitate international trade and
represents a bank's promise to pay the holder of its customer's time draft, upon
the maturity of the draft. The ruling holds that banker's acceptances were not
"cash items" because they did not satisfy the definition of cash used in the
definition of domestic building and loan associations: "cash on hand, and time
or demand deposits with, or withdrawable accounts in, other financial
institutions."
In contrast, in Revenue Ruling 77-199, 1977-1 C.B. 195, the IRS was
asked whether certificates of deposit held by a REIT were "cash items" or
"securities." Because neither "cash items" nor "certificates of deposit"
("CD's") are defined in the REIT provisions of the Code, the IRS looked to the
1940 Act, pursuant to the direction of Code Section 856(c)(6)(F). Finding no
definition in the 1940 Act, the IRS looked to the decision in Securities and
Exchange Commission v. Fifth Avenue Coach Lines, Inc., 289 F.Supp. 3 (S.D.N.Y.
1968), aff'd on other grounds, 435 F.2d 510 (2d Cir. 1970), where the District
Court relied on Section 210.6-03(1) of Regulation S-X, 17 CFR Part 210, to
conclude that CD's are cash items for Section 3(a)(3) of the 1940 Act because
they are evidence of the existence of a time deposit. Based on this decision,
the IRS concluded that CD's which matured one year or less after issuance are
cash items for purposes of the 75 percent asset test. The IRS defined a CD as a
"written acknowledgment by the issuer to pay to the holder at a fixed maturity
date in the future the sum of money on deposit together with stated interest
thereon."
The IRS has not published any Revenue Rulings interpreting the terms
"cash" or "cash terms" after the SEC's 1979 Release (IC-10937), although it has
released a few non-precedential
- ------------------------
13. In G.C.M. 35876 (June 27, 1974), which appears to foreshadow the issuance
of Revenue Ruling 77-59, the Office of Chief Counsel recommended that the
IRS withdraw a proposed revenue ruling concluding that repurchase
agreements with investment banking institutions qualify as "cash or cash
items" under Section 856(c)(5)(A) and that the ruling be modified to hold
that such repurchase agreements, if written, constitute securities under
the 1940 Act.
<PAGE> 111
authorities since that date. For example, in G.C.M. 39531 (July 16, 1986), the
Office of Chief Counsel stated that overnight loans of federal funds made by a
regulated investment company are not "cash or cash items." However, the IRS
based its conclusion on its holding in Revenue Ruling 77-59, reasoning that if
repurchase transactions are not cash or cash items, then overnight loans of
federal funds could not be cash or cash items, because "overnight repo
agreements are more like "cash" than the overnight loans since [the repo's]
are... secured by Government obligations." Thus, the G.C.M. was relying on IRS
authority that had been issued before the SEC's issuance of Release IC-10937.
The G.C.M. gives no indication that its authors were aware of SEC Release
IC-10937.
The IRS has also stated that it believes that where the meaning of a
term has not been established under the 1940 Act, Internal Revenue Code
authorities, although not determinative of a term's meaning under the 1940 Act,
are illustrative of the general legal principles that would likely govern the
interpretation to be given such a term. G.C.M. 36782 (July 6, 1976). Using this
IRS approach, the terms "cash" and "cash items" appear in numerous other
sections of the Code and regulations issued thereunder. "Cash" is defined in
different ways, depending on the purpose of the Code section at issue.(14) "Cash
items" is not defined; however, a definition of "cash equivalents" is contained
in Treas. Reg. Section 1.897-7T. The term "cash equivalent" is generally used
interchangeably with "cash items".(15)
Section 897 contains rules for the taxation of nonresident alien
individuals and foreign corporations on the disposition of a United States real
property interest ("USRPI"). Treas. Reg. Section 1.897-7T provides that an
interest in a partnership in which, directly or indirectly, 50 percent or more
of the value of the gross assets consist of USRPI's and 90 percent or more of
the value of the gross assets consist of USRPI's plus any "cash or cash
equivalents" shall be treated as entirely a USRPI. "Cash equivalent" is defined
as any asset readily convertible into cash (whether or not denominated in U.S.
dollars) including, but not limited to, bank accounts, certificates of deposit,
money market accounts, commercial paper, U.S. and foreign treasury obligations
and bonds (emphasis added), corporate
- ------------------------
14. For example, Treas. Reg. section 1.6045-1(a)(13), which deals with returns
required to be filed by brokers and for barter exchanges, defines cash as
United States dollars or any convertible foreign currency. Treas. Reg.
section 301.7701-13A(e)(1), which deals with required assets for a
domestic building and loan association, defines cash as cash on hand, and
time or demand deposits with, or withdrawable accounts in, other financial
institutions. Section 6050I, which requires returns to be filed by persons
engaged in a trade or business who receive more than $10,000 in cash in
one transaction (or two or more related transactions), provides than cash
includes foreign currency and, to the extent provided in regulations, any
monetary instrument (whether or not in bearer form) with a face amount of
not more than $10,000, but not including a personal or corporate check
drawn on a financial institution. Treas. Reg. section 1.6050I-1(c)(1)
expands the definition of cash contained in Section 6050I to include a
cashier's check (including a" treasurer's check" and a "bank check"), a
bank draft, traveler's check or money order having a face amount of not
more than $10,000.
15. See, e.g., Rev. Rul. 74-177, 1977-1 C.B. 165; G.C.M. 36782 (July 6, 1976);
PLR 9309036 (December 7, 1992); PLR 9219017 (February 5, 1992)("cash
items" includes "cash equivalents"). See also Cone Mills Corp. v. Western
Pacific Industries, Inc., C-83-1181-G, slip. op. (M.D.N.C. Dec. 7,
1983)(LEXIS, Fedtax library, OMNI file)(Treasury Bills were cash items but
other cash equivalents were investment securities under 1940 Act Section
3(a)(3) and Rule 3a-1 based on investment intent).
<PAGE> 112
obligations and bonds, precious metals or commodities, and publicly-traded
instruments. Section 897 was enacted in 1980, as part of the Foreign Investment
in Real Property Tax Act, and Treas. Reg. Section 1.897-7T was adopted in 1988,
after the date of the SEC's announcement of Release IC-10937.
The essential economic characteristics of the Certificates of Deposit
analyzed in Rev. Rul. 77-199 are quite similar to the essential economic
characteristics of the Repos. Moreover, certain characteristics of the Repos
make the Repos more like cash items than the CD's described in that Revenue
Ruling. First, the Repos had a term of one to three days, making them highly
liquid, while the CD's in Rev. Rul. 77-199 could have maturity dates up to one
year. Second, the Repos were backed by the full faith and credit of the United
States, as opposed to a non-governmental issuer (e.g., a bank) of the CD's.
Finally, the fair market value of the Treasury Bills underlying the Repos was
102 percent of the repurchase amount, while a CD issued by a bank is insured by
FDIC insurance only up to $100,000.
IN ADDITION, THE REPOS CAN BE DISTINGUISHED FROM THE REPURCHASE
OBLIGATIONS ANALYZED IN REV. RUL. 77-59. AS NOTED EARLIER, UNLIKE THE REPOS, NO
SPECIFIC SECURITY WAS CREDITED TO THE ACCOUNT OF THE REPOS IN REV. RUL. 77-59,
AND THE TREASURY SECURITIES WERE NOT MARKED IN ANY MANNER TO INDICATE THAT THEY
WERE OWNED BY ANYONE OTHER THAN THE OTHER PARTY TO THE REPURCHASE AGREEMENT.
The banker's acceptances which the IRS ruled were not "cash items" in
Rev. Rul. 72-171 are distinguishable from the Repos in that the banker's
acceptances were not secured by low-risk collateral (as were the Repos) and
essentially represent a guarantee of a third-party debt, as opposed to actual
cash transferred to a bank or other financial institution by the taxpayer.
Likewise, the overnight loans of federal funds held not to be "cash items" in
G.C.M. 39531 were not considered deposits in banks for purposes of FDIC
insurance and were not otherwise federally guaranteed. The IRS, in G.C.M. 39531,
was concerned that a ruling that such loans constituted "cash or cash items"
would permit a regulated investment company ("RIC") to loan 100 percent of its
assets to a single borrower, which would be inconsistent with the
diversification requirements applicable to RICs, in light of the unsecured
nature of the federal funds loans and the fact that they were not Government
securities. This is unlike the circumstances involving the Repos, where a
default by the securities dealer on its obligation to repurchase would entitle
RPS to possess the U.S. Treasuries serving as collateral and thereby to hold
assets that constitute qualified assets for purposes of the diversification
requirements applicable to REITs.
Although certain of the IRS administrative pronouncements discussed
above may seem inconsistent with a conclusion that the Repos are cash items, all
of the precedential IRS Rulings were issued before the SEC's issuance of Release
IC-10937 in 1979. That SEC Release stated general principles for determining
whether financial instruments were to be treated as investment securities or as
cash items under the 1940 Act. Accordingly, the administrative pronouncements by
the IRS which conclude that repurchase transactions are not cash items, in our
view, are not applicable because the facts involved in these rulings are
different from the Repos and because the IRS' position has been made obsolete by
the SEC's Release No. IC-10937 and Treas. Reg. Section 1.897-7T. The IRS
administrative pronouncements since the date of the SEC Release are either
consistent with that conclusion (i.e., Treas. Reg. Section 1.897-7T) or are of
limited effect because they are not published positions of the IRS and have
little or no precedential authority (i.e., G.C.M. 39531).
It is, of course, possible that a court could determine that the
Repos are not cash items. However, we believe this would be unlikely in the
context of a determination made for the limited purpose of Section 856(c)(5)(A)
of the Code and would require the court to reject the SEC position of
<PAGE> 113
the definition of cash items in Release No. IC-10937 and the IRS' definition of
cash equivalents contained in Treas. Reg. Section 1.897-7T.
3. Opinion
Based on the foregoing, it is our opinion that the ownership by
RPS of the Repos, as described above, will not cause RPS to violate the
provisions of Section 856(c)(5)(A) of the Code with respect to its taxable year
ended December 31, 1994 and that RPS will not lose its REIT status because of
ownership of the Repos during its taxable year ended December 31, 1994.
Very truly yours,
<PAGE> 114
SCHEDULE 3.3
RAMCO DEBT TO BE REFINANCED AND PROPERTIES
TO BE ENCUMBERED BY REFINANCE LOAN
Debt to be Refinanced
<TABLE>
<CAPTION>
Actual Balance
Lender at 12-31-94
------ --------------
<S> <C> <C>
Tel-Twelve Mall First of Boston 30,915,000
Tel-Twelve Mall Huntington Bank 87,495
Tel-Twelve Mall Huntington Bank 9,950
Southfield Plaza Huntington Bank 0
Ramco Jackson NBD Bank, NA. 25,142,612
Ramco Jackson Huntington Bank 49,570
Roseville Plaza Barclays Bank 9,793,108
Southfield Plaza Barclays Banks 8,741,633
West Oaks I Huntington Bank 7,778
UNUM Life Insurance 4,370,111
Ramco Lansing Bank of Boston 4,222,958
Sterling Mall Mutual Benefit 5,881,859
Sterling Mall First of America 1,815,363
Sterling Mall Land Contract 622,037
Sterling Mall Land Contract 194,975
Ford-Sheldon Huntington Bank 526,017
Ford-Sheldon Aetna Life 5,857,385
W & G Realty Aetna Life 4,368,226
</TABLE>
<PAGE> 115
Properties to be Encumbered by Refinance Loan
Tel-Twelve Mall Southfield, Michigan
East Ridge Commons Flint, Michigan
Southfield Plaza Southfield, Michigan
Roseville Plaza Roseville, Michigan
New Towne Plaza Canton, Michigan
Clinton Consumers Mall Sterling Heights, Michigan
Orion Plaza Lake Orion, Michigan
Jackson Crossing Jackson, Michigan
West Oaks I Novi, Michigan
<PAGE> 116
SCHEDULE 3.3(j)
Procedures Letter
________ __, 1995
Board of Directors
RPS Realty Trust
733 Third Avenue
New York, New York 10017
Dear Sirs:
We have audited the consolidated balance sheets of Ramco-Gershenson, Inc.
(Ramco) as of December 31, 1994 and 1993, and the consolidated statements of
operations, retained earnings, and cash flows for each of the three years in the
period ended December 31, 1994, and the combined statements of revenues and
certain expenses of Ramco Properties (Properties) for the year ended December
31, 1994 included in the proxy of RPS Realty Trust (RPS) filed by RPS under the
Securities Exchange Act of 1934 (Exchange Act). Our reports with respect thereto
are included in the proxy dated May 1995; herein referred to as the proxy.
We are independent certified public accountants with respect to Ramco and Ramco
Properties within the meaning of the Securities Act of 1933 (Act) and the
applicable published rules and regulations thereunder.
- ------------------------
* Deloitte & Touche LLP (NY) will provide the Board of Trustees with a
substantially similar letter that relates to the Trust's financial
statements.
* The date reflected herein will be updated to reflect the financial
statements included in the Proxy Statement.
<PAGE> 117
May 1995
Board of Directors
Page 2
In our opinion, the financial statements and financial statement schedules
audited by us and included in the proxy comply as to form in all material
respects with the applicable accounting requirements of the Exchange Act and the
related published rules and regulations.
We have not audited any financial statements of Ramco and Ramco Properties as of
any date or for any period subsequent to December 31, 1994; although we have
conducted audits for the year ended December 31, 1994, the purpose (and,
therefore, the scope) of the audits was to enable us to express our opinions on
the Ramco financial statements as of December 31, 1994, and the Ramco and Ramco
Properties financial statements for the year then ended, but not on the
financial statements for any interim period within that year. Therefore, we are
unable to and do not express any opinion on (1) the unaudited condensed balance
sheet as of March 31, 1995, and the unaudited condensed statements of
operations, retained earnings, and cash flows for the three-month periods ended
March 31, 1995 and 1994, or (2) the combined statements of revenues and certain
expenses of Properties for the three-month periods ended March 31, 1995 and 1994
and included in the proxy, or on the financial position, results of operations,
or cash flows of either entity as of any date or for any period subsequent to
December 31, 1994.
<PAGE> 118
May 1995
Board of Directors
Page 3
1. At your request, we have carried out other procedures to May 1995 (our
work did not extend to the period from May 1995 to May 1995, inclusive),
as follows:
a. With respect to the three-month periods ended March 31, 1995 and
1994, we have
(i) Performed the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the unaudited condensed statements of income,
retained earnings, and cash flows of Ramco for the three-month
periods ended March 31, 1995 and 1994, and the unaudited
combined statements of revenues and certain expenses of
Properties for the three-month periods ended March 31, 1995 and
1994, included in the proxy, and agreed the amounts contained
therein with the accounting records as of March 31, 1995 and
1994, and for the three-month periods then ended.
(ii) Inquired of certain officials who have responsibility for
financial and accounting matters whether the unaudited
financial statements referred to in a(i) comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations.
<PAGE> 119
May 1995
Board of Directors
Page 4
b. With respect to the period from April 1, 1995 to May 1995, we have
(i) Been advised by officials of Ramco that no such financial
statements of any date or for any period subsequent to March
31, 1995 were available.
(ii) Inquired of certain officials who have responsibility for
financial and accounting matters whether (1) at May 1995 there
was any increase in long-term debt or any decrease in
stockholders' equity of Ramco as compared with amounts shown in
the March 31, 1995 unaudited condensed balance sheet included
in the proxy, and (2) for the period from April 1, 1995 to
May , 1995 there were any decreases, as compared with the
corresponding period in the preceding year, in net income of
Ramco or revenues in excess of certain expenses of Properties.
Those officials stated that (1) at May 1995, there was in
long-term debt and in stockholders' equity of Ramco as compared
with amounts shown in the March 31, 1995 unaudited condensed
balance sheet included in the proxy, and (2) there were for the
period from April 1, 1995 to May 1995, as compared with the
corresponding period in the preceding year in net income of
Ramco or revenues in excess of certain expenses of Properties.
<PAGE> 120
May 1995
Board of Directors
Page 5
2. At your request, we have read the following items in the proxy on the
indicated pages.
(RPS TO PROVIDE) THESE WOULD BE THE STANDARD ITEMS THAT WOULD
BE TRACED TO FINANCIAL STATEMENTS OR SCHEDULES PREPARED BY THE CLIENT
3. Our audits of the financial statements for the periods referred to in
the introductory paragraph of this letter comprised audit tests and
procedures deemed necessary for the purpose of expressing an opinion
on such financial statements taken as a whole. For none of the
periods referred to therein, nor for any other period, did we perform
audit tests for the purpose of expressing an opinion on individual
balances of accounts or summaries of selected transactions such as
those enumerated above,and, accordingly, we express no opinion
thereon.
4. However, at your request, we have performed the following additional
procedures, which were applied as indicated with respect to the items
enumerated above.
(RPS TO PROVIDE) SEE COMMENT UNDER ITEM 2 ABOVE.
<PAGE> 121
May 1995
Board of Directors
Page 6
5. At your request, we have also
a. Read the unaudited pro forma condensed balance sheet as of
March 31, 1995, and the unaudited pro forma condensed
statements of income for the year ended December 31, 1994, and
the three-month period ended March 31, 1995, included in the
proxy.
b. Inquired of certain officials of Ramco who have responsibility
for financial and accounting matters about
(i) The basis for their determination of the pro forma
adjustments relating to Ramco and Ramco Properties, and
(ii) Whether the unaudited pro forma condensed consolidated
financial statements referred to in 5.a comply as to
form in all material respects with the applicable
accounting requirements of rule 11-02 of Regulation S-X.
<PAGE> 122
May 1995
Board of Directors
Page 7
c. Proved the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the unaudited
pro forma condensed consolidated financial statements.
The foregoing procedures are substantially less in scope than an
examination, the objective of which is the expression of an opinion
on management's assumptions, the pro forma adjustments, and the
application of these adjustments to historical financial information.
Accordingly, we do not express such an opinion.
6. At your request, we have also read the Estimated Unaudited Statement
of Pro Forma funds from Operations for the 12-month period ending
December 31, 1995 as it relates to Ramco Properties and Ramco and
performed the following additional procedures.
a. We proved the arithmetic accuracy of the Statement.
b. We compared the pro-forma Funds From Operations for the year
ended December 31, 1994 to the total of pro-forma net income
and depreciation shown in the Pro-Forma Statement of Income for
the year ended December 31, 1994 and found them to be in
agreement.
<PAGE> 123
May 1995
Board of Directors
Page 8
c. We agreed the amounts of revenues from base rents adjusted to
reflect a full year's operations from stores leased and opened
during 1994, contractual increases in base rents from existing
leases, minimum rents from new tenant leases signed as of
December 31, 1994 for tenants with occupancy beginning in 1995,
the impact of spaces vacated during 1994 which were not
released by December 31, 1994 and the impact of straight lining
of rents to schedules prepared by Ramco and found them to be in
agreement.
d. We proved the arithmetic accuracy of the schedules referred to
in c.
e. For forty percent of the items in the schedules referred to in
c. indicating changes in base rent from 1994 to 1995 (based on
a random sampling of such items), we compared the amount listed
for that lease in 1995 to a signed lease and found them to be
in agreement.
f. We proved the arithmetic accuracy of the schedule which
aggregated base rents for 1994 and found them to be in
agreement with the base rents included in the Ramco Properties
audit.
<PAGE> 124
May 1995
Board of Directors
Page 9
g. We computed the amount of the Media Play annualized base rent
based on the signed lease and computed the annualized marginal
increase in CAM and real estate tax reimbursements attributable
to the Media Play lease (after taking into account any
incremental increase in expenses attributable to such lease).
h. We compared the amounts of estimated Cap Ex, TI's, leasing
commissions and principal amortization to schedules prepared by
Ramco and found them to be in agreement.
i. We proved the arithmetic accuracy of the schedules referred to
in h.
j. We have compared the amounts, percentages and financial
information relating to Ramco and the Ramco Properties which
appear in the proxy statement and have compared such amounts,
percentages and financial information with the accounting
records or prepared schedules of Ramco and the Ramco Properties
and have found them to be in agreement.
7. At your request, we have also read the calculation of the OP Value,
as set forth in Section 1.5 of the Master Agreement, and at your
request have performed the following procedures.
<PAGE> 125
May 1995
Board of Directors
Page 10
a. We compared the amount of FFO to the Estimated Unaudited
Statements of Pro Forma Funds From Operations for the 12 month
period ending December 31, 1995 and found it to be in
agreement.
b. We compared the formula in the calculation to Section 1.5 of
the Master Agreement and found it to be in agreement.
c. We proved the arithmetic accuracy of the calculation.
8. It should be understood that we have no responsibility for
establishing (and did not establish) the scope and nature of the
procedures enumerated in paragraphs 1 through 7 above; rather, the
procedures enumerated therein are those which the requesting party
has asked us to perform. Accordingly, we make no representations
regarding questions of legal interpretation or regarding the
sufficiency for your purposes of the procedures enumerated in the
preceding paragraphs; also, such procedures would not necessarily
reveal any material misstatement of the amounts or percentages listed
above as set forth in the proxy circular. Further, we have addressed
ourselves solely to the foregoing data and make no representations
regarding the adequacy of the disclosures or whether any material
facts have been omitted. This letter relates only to the financial
statement
<PAGE> 126
May 1995
Board of Directors
Page 11
items specified above and does not extend to any financial statements
of the company taken as a whole.
9. The foregoing procedures do not constitute an audit conducted in
accordance with generally accepted auditing standards. Had we
performed additional procedures or had we conducted an audit of
Ramco's or Properties' March 31, 1995 and 1994 condensed financial
statements in accordance with generally accepted auditing standards,
other matters might have come to our attention that would have been
reported to you.
10. These procedures should not be taken.to supplant any additional
inquiries or procedures that you would undertake in your
consideration of the proposed transaction.
11. This letter is solely for your information and to assist you in your
inquiries in connection with the proxy and it is not to be used,
circulated, quoted, or otherwise referred to for any other purpose,
including but not limited to the registration, purchase, or sale of
securities, nor is it to be filed with or referred to in whole or in
part in the Trust's proxy or any other document.
<PAGE> 127
SCHEDULE 4.1
LIST OF RAMCO CONTRIBUTING PARTIES
1. KM BLUE ASH DEVELOPMENT COMPANY, an Ohio co-partnership
2. LA II GROUP, an Ohio general partnership
3. MICHIGAN SHOPPING CENTER VENTURES II LIMITED PARTNERSHIP, a Michigan
limited partnership
4. RAMCO CANTON CO., a Delaware general partnership
5. RAMCO FRASER DEVELOPMENT COMPANY, a Michigan co-partnership
6. RAMCO JACKSON DELAWARE LIMITED PARTNERSHIP, a Delaware limited partnership
7. RAMCO KENTWOOD ASSOCIATES, a Michigan co-partnership
8. RAMCO LANSING ASSOCIATES, a Michigan co-partnership
9. RAMCO LAPEER ASSOCIATES LIMITED PARTNERSHIP, a Michigan limited partnership
10. RAMCO NOVI I CO., a Delaware general partnership
11. RAMCO NOVI II CO., a Delaware general partnership
12. RAMCO OAK BROOK SQUARE ASSOCIATES LIMITED PARTNERSHIP, a Michigan limited
partnership
13. RAMCO ORION CO., a Delaware general partnership
14. RAMCO ROSEVILLE CO., a Delaware general partnership
15. RAMCO SINGER ASSOCIATES LIMITED PARTNERSHIP, a Ohio limited partnership
16. RAMCO SOUTH NAPLES DEVELOPMENT, a Florida general partnership
17. RAMCO SOUTHFIELD CO., a Delaware general partnership
18. RAMCO STERLING MALL CO., a Delaware general partnership
19. RAMCO STERLING STRIP CO., a Delaware general partnership
20. RAMCO TEL-TWELVE CO., a Delaware general partnership
21. SOUTHFIELD PLAZA LIMITED PARTNERSHIP, a Michigan limited partnership
22. SPRING MEADOWS SHOPPING CENTER ASSOCIATES, an Ohio general partnership
<PAGE> 128
23. WEST ALLIS SHOPPING CENTER ASSOCIATES, a Wisconsin general partnership
<PAGE> 129
SCHEDULE 4.4
CONSENTS NEEDED
No other consents are needed by the Ramco Group outside of those set forth on
Schedule 3.2.
<PAGE> 130
SCHEDULE 4.7
RAMCO EXCLUDED ASSETS
River's Edge Office Building Southfield, Michigan
Summit Complex (Summit Place, Summit Waterford, Michigan
Crossing, Summit North) Livonia, Michigan
Livonia Towne Square Saginaw, Michigan
Bay Towne Plaza Sterling Heights, Michigan
Builders Square (vacant) Sandusky, Ohio
Park Place Shopping Center Toledo, Ohio
North Towne Commons
Estate Properties
Land Contracts
Southfield Properties - GGJ Associates
Melvindale Plaza
Gershenson-Wittbold Mt. Clemens
Nine Mile & Harper
Southfield Properties - Plymouth/
Southfield
Southfield Properties - Van Born
Southfield Properties - Ypsilanti
Partnership Interest in Sale/Leaseback
Assets
Southfield Properties - Southgate
Southfield Properties - Westland
Partnership Interest in Real Estate Owned
in Fee
Southfield Properties - Cedar/Jolly
Maple & Livernois Plaza
G & R Development
G & S Realty Company
Southfield Properties - Lansing Mart
Gershenson-Wittbold Louisville
Michigan Mart Associates
<PAGE> 131
Following is a list of businesses in which the Ramco Principals are involved
which are not included as part of the transaction and are not a part of excluded
properties. This following list is for informational purposes only.
Ponmalrest Associates, Inc. Burger King Franchise
R G Partnership Burger King Property Landlord
Video arcade businesses as of May 12, 1994:
Ramco Video - Tel-Twelve Mall
Video Arcade
Main Street Video
Video Arcade
Summit Video
Video Arcade
Gershenson Industries, Inc.
Fastener Systems Licensing
The Ward Group, Inc.
Card Shops
<TABLE>
<CAPTION>
Vacant Land Acres
- ----------- -----
<S> <C>
Sterling Heights, Michigan 5.4
Waterford, Michigan 5.0, 1.15, 2.6, 1.2
Saginaw, Michigan 3.77, 25.54
Sandusky, Ohio 1.1, 1.6, .96, 8.63, 6.92
Troy, Ohio .92, 18.745
Commerce Township, Michigan 1.55, 24.55
</TABLE>
<PAGE> 132
SCHEDULE 4.7(b)
I. 1994 LEASES NO LONGER VALID, SUBSISTING, OR IN FULL FORCE AND EFFECT
Dollar Plus (Fraser Shopping Center)
Mansour's Gift & Jewelry (Edgewood)
System 7 Hair (Spring Meadows Place)
Country Peddler (Eastridge Commons)
D.O.C. (Oak Brook Square)
Arby's (Tel-Twelve Mall)
Bulk Food Warehouse (Oak Brook Square)
El Bee Shoes (Eastridge Commons)
Southfield Meat & Deli (S-12)
Community Federal (New Towne Plaza)
Tools Stuff & More (New Towne Plaza)
McCauley's (West Oaks I)
Mid Michigan Jewelry (Eastridge Commons)
Piece Goods (Troy Towne Center)
Your Hair & Us (West Oaks I) (Size Reduction)
All For One (New Towne Plaza)
Salad Galley (Spring Meadows Place)
Kroger (West Oaks I)
United Paint (West Oaks I)
Tasso's (Oak Brook Square)
<PAGE> 133
II. AMENDMENTS OR MODIFICATIONS TO 1994 LEASES FROM 1/11/95-12/1/95
Cards Et Cetera (Clinton Valley Strip) - 12/21/94
Blockbuster Video (Eastridge) - 12/20/94
MC Sporting Goods (Roseville) - 6/5/95
El-Bee Shoes (Troy) - 4/5/95
Payless Shoe Source (Clinton Valley Strip) - 2/1/95
Payless Shoe Source (New Towne) - 5/4/95
Dollar Bills (West Allis) - 4/12/95
S & K Brands (Oak Brook) - 5/8/95
Dollar Tree (Southfield Plaza) - 5/8/95
House of Designs (Troy) - 6/6/95
Mail Boxes Etc. (West Oaks II) - 6/27/95
Mattress Discounters (West Oaks II) - 5/25/95
Dots (Eastridge) - 7/11/95
Dress Barn (Oak Brook) - 7/11/95
All for One (Troy) - 7/31/95
Secretary of State (Jackson) - 8/21/95
Care Center at Crossing (Jackson) - 8/21/95
The Book Place (Lake Orion) - 9/26/95
Andee B's (Tel-Twelve) - 10/9/95
Dr. Erhard-One Day Denture (Jackson) - 10/23/95
Stride Rite (Tel-Twelve) - 10/18/95
Ferran Florist (Fraser) - 10/23/95
<PAGE> 134
Shastar Rent to Own (Troy) - 11/7/95
Harmony House (Clinton Valley) - 11/22/95
III. 1994 LEASE TENANTS NO LONGER IN ACTUAL OCCUPANCY AS OF 12/1/95
1. Silk Corp (Kentwood)
2. Lee Ward (Spring Meadows)
IV. 1994 LEASE TENANTS MORE THAN 30 DAYS IN ARREARS IN PAYMENT OF ANY AMOUNT
DUE UNDER THE 1994 LEASE AS OF 12/1/95
(Does not include 1994 unpaid obligations where audits have been requested
or where a billing sum is in dispute.)
Tel-Twelve
Bagelmakers
Gigi's Ice Cream
Shish Kabob
Simpson Shoes
Southfield Plaza
Luxor Shoes
Eastridge Shopping Center
Tubby's
Your Cleaners
Edgewood Towne Center
Fashion Place
Piccadilly Peddler
Jackson Crossing
Paka Plaza Pet Center
Kelly's Home Decor
Ferndale Plaza
Dresses-4-Less
Southfield Plaza/12
Southfield Meat & Deli
<PAGE> 135
Naples Towne Center
Ming Wah Restaurant
Edgewood Towne Plaza/Lansing
Fashion Place
Piccadilly Peddler
Troy Towne Centre
Cleaver's
Kentwood Towne Centre
Coaches Closet
V. WRITTEN NOTICES RECEIVED FROM 1994 LEASE TENANTS OF INTEREST TO VACATE
RECEIVED BY 12/1/95
None.
VI. COLLECTIONS OF RENT FROM 1994 LEASE TENANTS MORE THAN ONE MONTH IN
ADVANCE AS OF 12/1/95
None.
VII. UNCURED NOTICES OF DEFAULT SENT BY LANDLORD TO 1994 LEASE TENANTS AS OF
12/1/95
None.
VIII. UNCURED NOTICES OF DEFAULT RECEIVED BY LANDLORD TO 1994 LEASE TENANTS AS
OF 12/1/95
None.
IX. KNOWN EVENTS WHICH, WITH NOTICE OR LAPSE OF TIME, WOULD CONSTITUTE A
DEFAULT AS OF 12/1/95
None.
X. UNFULFILLED LANDLORD OBLIGATIONS RELATING TO TENANT IMPROVEMENTS AND
CAPITAL EXPENDITURES UNDER 1994 LEASES AS OF 12/1/95
None.
XI. 1994 LEASE TENANTS WHICH LANDLORD IS AWARE IS SUBJECT TO A BANKRUPTCY
<PAGE> 136
PROCEEDING AS OF 12/1/95
Tel-Twelve Mall
1. Marianne
2. Winkelman's/Rave
New Towne Plaza
1. Winkelman's
Eastridge Commons
1. El Bee Shoes
2. Handy Andy
3. F&M
Oak Brook Square
1. El Bee Shoes
Jackson Crossing
1. So-Fro Fabrics
2. Marianne
Naples Towne Centre
1. Stuart's
Troy Towne Center
1. El Bee Shoes
West Oaks I Shopping Center
1. El Bee Shoes
2. Maternity Limited
Spring Meadows Shopping Center
1. El Bee Shoes
<PAGE> 137
SCHEDULE 4.9
1. Litigation described in Ramco Agreements.
2. Rosemary Dion vs. Ramco-Gershenson, Inc., Oakland County Circuit
Court Case No. 92-426262-CL; Michigan Court of Appeals Case No. 165981.
<PAGE> 138
SCHEDULE 4.12
BROKERS
Any brokers used in connection with the Refinance Loan and/or the line of credit
loan.
<PAGE> 139
SCHEDULE 4.14
RAMCO PARTNERS/INVESTORS
Alan J.B. Aronsohn
Robinson Silverman Pearce Aronsohn & Berman
1290 Avenue of the Americas
New York, NY 10104
Stanley Berman
Robinson Silverman Pearce Aronsohn & Berman
1290 Avenue of the Americas
New York, NY 10104
Aaron H. Gershenson Residual Trust
c/p A & W Gershenson Properties
26555 Evergreen, Suite 1520
Southfield, MI 48076
Bruce Gershenson
26645 Irving Drive
Franklin, MI 48025
Dennis Gershenson
25525 West 14 Mile Road
Franklin, MI 48025
Joel Gershenson
6071 Hickory Tree Trail
Bloomfield Hills, MI 48301
Richard Gershenson
4602 Private Lake Drive
Bloomfield Hills, MI 48301
Sylvia Gershenson Grantor Trust
c/o A & W Gershenson Properties
26555 Evergreen, Suite 1520
Southfield, MI 48076
James F. Gill
21 Warwick Road
Rockville Center, NY 11570
Sanford I. Goldzier
1931 Midlane
Syosset, NY 11791
Charles Kotick
Robinson Silverman Pearce Aronsohn & Berman
1290 Avenue of the Americas
New York, NY 10104
Robert Martin
c/o Leva Hawes
1220 19th Street, NW, Suite 700
Washington, DC 20036
Saul Pearce
Robinson Silverman Pearce Aronsohn & Berman
1290 Avenue of the Americas
New York, NY 10104
Toni, John C. & John S. Robinson
c/o Johnnie Taylor
One Wall Street
New York, NY 10286
Michael N. Rosen
50 East 79th Street, Apt. 9A
New York, NY 10021
Leonard B. Sand
115 East 9th Street, Apt. 19F
New York, NY 10003
Monique Schoen
1150 Park Avenue
New York, NY 10128
S. Randolf Seymour
29310 Whitingham Court
Agoura Hills, CA 91301
<PAGE> 140
Trust Under the Will of Matthew Silverman
c/o Jerome Volkman, CPA
60 East 42nd Street
New York, NY 10165
Laurence A. Spelman
22 West 96th Street
New York, NY 10025
Michael A. Ward, Trustee Under Agreement Dated
2/22/77
5335 Wayfind Lane
Bloomfield Hills, MI 48302
Ramco L & W Partners
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
James W. Aikman
8949 Baker Road
Indianapolis, IN 46259
Marcella Aikman
8122 South Mitthoeffer Road
Indianapolis, IN 46227
William C. Albert
29275 Northwestern Highway, Suite 100
Southfield, MI 48034
Sondra L. Berlin Revocable Living Trust
c/o Sondra L. Berlin
3322 South Shore Circle
West Bloomfield, MI 48323
Thomas N. and Dawn S. Boucher
1753 White Water Drive
Rochester Hills, MI 48309
Howard G. Brown Credit Trust
c/o Kenneth A. Brown, Trustee
P.O. Box 2558
Livonia, MI 48151
Donald Cunningham
3118 Bloomfield Park Drive
West Bloomfield, MI 48033
Bruce Douglas
2849 Falmouth Road
Toledo, OH 43615
Steven J. Engelhart
1011 Satterlee
Bloomfield Hills, MI 48304
Ferndale/Livonia Limited Partnership
c/o Ramco-Gershenson, Inc.
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
Betty J. Fisher
681 Lake Shore Drive
Grosse Pointe, MI 48236
Michael R. Risher
90 Kenwood Road
Grosse Point, MI 48236
Allen S. Frank
MCANY, Inc.
3909 N.E. Sunny Isles Boulevard, Suite 202
Miami Beach, FL 33160
Norman W. and Marilyn S. Gabel
14268 Cranston
Livonia, MI 48154
Sam Gershenson
26111 West 14 Mile Road, Suite 115
Franklin, MI 48025
William Gershenson Residual Trust
c/o A & W Gershenson Properties
26555 Evergreen, Suite 1520
Southfield, MI 48076
Orville E. & Margaret Horton
6281 Hailabirn Road
Haines City, FL 33844
<PAGE> 141
Walter Kaye
475 Park Avenue
New York, NY 10022
Judith F. Knudsen
29757 Somerset Boulevard
Perrysburg, OH 43551
Helen P. Kyriakopoulos, Trustee F/B/O Helen P.
Kyriakopoulos
Under Will of Constantine Kyriakopoulos
30150 Telegraph Road, Suite 249
Birmingham, MI 48010
L/F Associates
c/o Joel S. Adelman, Esquire
2290 First National Building
Detroit, MI 48226
Florine Mark Revocable Living Trust
c/o Florine Mark
The WW Group, Inc.
P.O. Box 9072
Farmington Hills, MI 48333
John and Judy Messenger
15622 Shady Lane
Three Rivers, MI 49093
Ernest and Margaret Muse
Route 2, Box 285
New Castle, IN 47362
Kermit L. and Donna Muse
Rural Route 1
Cambridge City, IN 47327
Theresia Nowak
4153 Beach
Troy, MI 48098
Jack A. Robinson Revocable Living Trust
c/o Jack A. Robinson
1589 Kirkway
Bloomfield Hills, MI 48013
Mildred Schiff Trust
c/o Mildred Schiff
3301 Palm Aire Drive South, Apt. 106
Pompano Beach, FL 33069
Benedict A. Silverman
MCANY, Inc.
675 Third Avenue, 24th Floor
New York, NY 10017
Omar J. Soenen Trust
c/o Omar J. Soenen, Trustee
32529 North River Road
Mt. Clemens, MI 48045
Chester and Delores Sokol
1051 Foxfire Lane, Apt. 301
Naples, FL 33942
Albert and Lillian Vannini
1251 Oakwood
Rochester, MI 48063
William J. Wink
5138 Woodland Lane
Bloomfield Hills, MI 48013
Robert C. and Patricia C. Wood
8151 Fawn Valley Drive
Clarkston, MI 48016
Ramco Oak Brook Square, Inc.
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
Milton J. Blumberg
4578 Pine Village Drive
West Bloomfield, MI 48323
William A. Engelhart
1589 Lakeview
Sylvan Lake, MI 48320
Rose M. Juliar
5136 Woodlands Trail
Bloomfield Hills, MI 48302
<PAGE> 142
Steven Karas
5340 Fox Ridge
West Bloomfield, MI 48322
Ron Sesvold
7860 Barnsbury
Union Lake, MI 48387
Ann Temesvari
703 Morand
Windsor, Ontario N9G1J1
CANADA
Gloria Wallick
1928 Dawn Ridge Road
Walled Lake, MI 48390
Ramco Jackson, Inc.
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
Robert Dancy
37011 Fox Glen
Farmington Hills, MI 48331
Diane Dow
7776 Amboy Street
Dearborn Heights, MI 48127
Eleanor Ruth Engelhart Revocable Living Trust
c/o Eleanor Ruth Engelhart, Trustee
1589 Lakeview
Sylvan Lake, MI 48320
Steven J. Engelhart
1011 Saterlee
Bloomfield Hills, MI 48304
Thomas Robin
242 Arlington
Birmingham, MI 48009
Larry Ruppert
1254 Heights Road
Lake Orion, MI 48362
Joseph W. Sutschek
4540 Arline Drive
Orchard Lake, MI 48323
Ramco Kentwood Associates
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
David Rose
2841 Squirrel Road
West Bloomfield, MI 48304
Sydney Rose
2841 Squirrel Road
West Bloomfield, MI 48304
Robert Doettl
RWD Interest
14905 Overbrook Drive, Suite 302
Southgate, MI 48195
Frederick Rubin
Fairfield Development Company
800 West Long Lake Road, Suite 140
Bloomfield Hills, MI 48304
Ramco Lansing Associates
Edgewood Towne Center
Lansing, Michigan
Ramco Lapeer, Inc.
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
Ramco Lewis Alexis Associates
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
Brian W. McMahon
The Danberry Company
One Seagate, Suite 1680
Toledo, OH 43604
Ramco Lewis Alexis Associates
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
<PAGE> 143
Ramco Novi Development Company
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
Kefco Novi Associates
6735 Telegraph Road
Birmingham, MI 48010
Ramco Ventures
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
Kenneth Eisenberg
Kenwal Products Corp.
9301 Central Avenue
Detroit, MI 48204
Alfred Fisher III
General Safety Corp.
23001 Industrial Drive West
P.O. Box 480
St. Clair Shores, MI 48080
James Grosfeld
20500 Civic Center Drive, Suite 3000
Southfield, MI 48076
Christina Grow
104 Kenwood Road
Grosse Pointe, MI 48236
Judith Fisher Knudsen
29757 Somerset Boulevard
Perrysburg, OH 43551
S. R. Investors Limited Partnership
c/o Richard J. Burstein, Esquire
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, MI 48226
Southfield Plaza Limited Partnership
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
Second WWW Partnership
c/o McKinley Associates
320 North Main
P.O. Box 8649
Ann Arbor, MI 48107
Sylvia Gershenson Grantor Trust
c/o A & W Gershenson Properties
26555 Evergreen, Suite 1520
Southfield, MI 48076
Ramco Consumers Mall Associates Limited
Partnership
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
R. G. Tel Twelve Co.
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
Arntawa South Towne Properties
28090 Harwich Drive
Farmington Hills, MI 48024
Berwil, Ltd.
2121 Texas Ash Drive
Irving, TX 75063
Thomas J. Burns
320 Martell Court
Bloomfield Hills, MI 48304
Ralph A. Caponigro Revocable Living Trust
c/o Ralph A. Caponigro
644 Bennington Drive
Bloomfield Hills, MI 48013
Donald R. Clark Irrevocable Trust
6300 Superior Road
Ypsilanti, MI 48197
Phyllis A. Clark
6300 Indian Hill Drive
Ypsilanti, MI 48197
<PAGE> 144
Conbet Associates
c/o Beth E. Lowenstein
420 Goodhue
Bloomfield Hills, MI 48304
Frank P. Coyer, Jr. Living Trust
c/o Frank P. Coyer, Jr.
30445 Oakview Way
Birmingham, MI 48010
Terry Davis
3254 Walma
Orchard Lake, MI 48324
Roger Fridholm
15840 Lakeview Court
Grosse Pointe, MI 48230
Russell G. Howell
1320 Forest Glen Court
Bloomfield Hills, MI 48304
Nancy E. Karas Revocable Living Trust
c/o Nancy E. Karas
5340 Fox Ridge
West Bloomfield, MI 48322
Alexander Karp Trust
23749 Riverview Drive
Southfield, MI 48034
The Robert C. Katz Family Trust
c/o Robert C. Katz, Trustee
25244 South Hollygreen Drive
Sun Lake, AZ 85248
Eugene L. Klein
2280 West Maple Road
Walled Lake, MI 48390-0200
Jerome W. Krause, D.D.S. Trust
c/o Jerome W. Krause, D.D.S.
28275 Danvers Court
Farmington Hills, MI 48018
Joseph and Doris Letourneau
4658 Brightmore
Bloomfield Hills, MI 48302
Irving Lichtman
32244 Ravine
Farmington Hills, MI 48018
George F. and Barbara C. Malley
671 South Oxford
Grosse Pointe, MI 48236
The Barbara Mae Matusz Revocable Trust
c/o Barbara Mae Matusz
5913 Glen Eagles Drive
West Bloomfield, MI 48323
Robert D. Rowan Living Trust
c/o Robert D. Rowan
19644 Riverside Drive
Birmingham, MI 48232
Marion L. Ruen Revocable Trust
c/o Dennis A. Mele
3055 Ruen Drive
P.O. Box 9100
Palm Harbor, FL 34682
William H. Sandy Revocable Living Trust
c/o William H. Sandy
596 Rudgate
Bloomfield Hills, MI 48304
Adolph T. Silverstein Trust
c/o David Vanderbroek
9995 Huntcliff Trace
Atlanta, GA 30350
Leo R. and Carolee J. Tosto
20 West Lane Court
Dearborn, MI 48124
Steve Toth, Jr. Revocable Trust
2100 North Woodward Avenue, # 201
Bloomfield Hills, MI 48304
<PAGE> 145
Sam B. Williams
2280 West Maple Road
Walled Lake, MI 48390-0200
John W. and Marilyn A. Wolf
5090 State
Saginaw, MI 48603
Ramco Spring Meadows Associates
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
JCP Realty, Inc.
c/o J.C. Penney Company, Inc.
6501 Legacy Drive, Suite 2102
Plano, TX 75024-3698
Ramco Troy Associates
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
Randall L. Gunlock
8163 Old Yankee Road, Suite B
Dayton, OH 45459
Harold H. Singer
111 West First Street, Suite 500
Dayton, OH 45402
Ramco Allis Development Company
27600 Northwestern Highway, Suite 200
Southfield, MI 48034
The West Allis Center, Inc.
1126 South 70th Street
West Allis, WI 53214
<PAGE> 146
SCHEDULE 4.14(b)
CALIFORNIA INVESTORS
S. Randolph Seymour
29310 Whitingham Court
Agoura Hills, California 91301
<PAGE> 147
SCHEDULE 4.16(a)
BENEFIT PLANS
401(k) Salary Reduction
Non-Standardized Adoption Agreement
IRS Serial #D359971a
Approved April 30, 1992 with Lincoln National Life Insurance Co.
<PAGE> 148
SCHEDULE 4.16(b)
None.
<PAGE> 149
SCHEDULE 4.16(e)
None.
<PAGE> 150
SCHEDULE 4.16(f)
None.
<PAGE> 151
SCHEDULE 4.16(g)
None.
<PAGE> 152
SCHEDULE 4.17(b)
Agreement between Tel-Twelve Shopping Center and Service Employees International
Union, Local 79, AFL-CIO, 1994-1996
<PAGE> 153
SCHEDULE 5.2(a)
RPS Realty Trust 1989 Employees' Stock Option Plan
<TABLE>
<CAPTION>
Name Number of Options Exercise Price Expiration Date
- ---- ----------------- -------------- ---------------
<S> <C> <C> <C>
Joel Pashcow 600,000 $5.75 12/6/99
Herbert Liechtung 600,000 $5.75 12/6/99
Edwin Frankel 50,000 $5.75 12/6/99
John J. Johnston, Jr 50,000 $5.75 12/6/99
Steven Liechtung 20,000 $5.75 12/6/99
Nancy Comerford 5,000 $5.75 12/6/99
</TABLE>
RPS Realty Trust 1989 Trustees' Stock Option Plan
<TABLE>
<CAPTION>
Name Number of Options Exercise Price Expiration Date
- ---- ----------------- -------------- ---------------
<S> <C> <C> <C>
Edward Blumenfeld 29,622 $5.375 11/28/99
20,378 $5.25 11/28/01
Samuel Eisenstat 29,622 $5.375 11/28/99
20,378 $5.25 11/28/01
Edwin Glickman 29,622 $5.375 11/28/99
20,378 $5.25 11/28/01
Arthur Goldberg 29,622 $5.375 11/28/99
20,378 $5.25 11/28/01
Alfred Stalford 29,622 $5.375 11/28/99
20,378 $5.25 11/28/01
William Rosoff 29,622 $5.75 1/29/00
20,378 $5.375 1/29/02
Stephen Blank 29,622 $5.75 1/29/00
20,378 $5.375 1/29/02
</TABLE>
<PAGE> 154
SCHEDULE 5.2(b)
RPS Realty Trust - Subsidiaries
<TABLE>
<CAPTION>
Name Date of Incorporation
- ---- ---------------------
<S> <C>
Crofton Plaza, Inc. 4/26/91 (Maryland)
Sunshine Plaza Shops, Inc. 11/13/91 (Florida)
Lantana Plaza Shops, Inc. 11/6/92 (Florida)
Trinity Shops, Inc. 12/1/92 (Delaware)
The Commack Site, Inc. 12/18/92 (Delaware)
9 North Wabash Corp. 5/25/93 (Delaware)
Madison North Wabash Corp. 5/25/93 (Delaware)
Chester Plaza Shops, Inc. 5/12/93 (Delaware)
Norgate Shops Corp. 5/4/94 (Delaware)
</TABLE>
<PAGE> 155
SCHEDULE 5.5
Other Consents
None.
<PAGE> 156
SCHEDULE 5.6
Liabilities
None.
<PAGE> 157
SCHEDULE 5.7
Litigation
Litigation described in the RPS Contribution Agreements.
<PAGE> 158
SCHEDULE 5.9
Material Contracts
1. Employment Agreement dated December 31, 1988 between RPS Realty Trust and
Herbert Liechtung.
2. Employment Agreement dated December 31, 1988 between RPS Realty Trust and
Joel M. Pashcow.
3. Termination Agreement dated as of March 1, 1995 between RPS Realty Trust
and Herbert Liechtung.
4. Engagement letter with Dean Witter dated as of June 8, 1994.
5. Agreement with American Stock Transfer and Trust Company to serve as
transfer agent, registrar and dividend agent dated as of January 2, 1991
(as extended from time to time).
6. Agreement with S&S Construction dated January 18, 1995 with respect to the
roofing work at the Chester Shopping Center.
7. Agreement with Henry C. Smither Roofing Company Inc. dated September 29,
1994 with respect to the roofing work at the Norgate Shopping Center (work
has been completed).
8. Lease dated as of March 1, 1995 with respect to the premises located at 747
Third Avenue.
9. Engagement letter with Arthur Andersen LLP dated July 8, 1994 with respect
to the appraisals on the RPS Properties.
10. Engagement letter with Kenneth Leventhal & Co. dated July 29, 1994.
11. Engagement letter with Marvin Kenigsberg.
<PAGE> 159
SCHEDULE 5.10
No Material Adverse Change
Possible contamination of well water at Trinity Corners Shopping Center as a
result of an off-site third-party petroleum spill.
<PAGE> 160
SCHEDULE 5.11
Compliance with Law
See Schedule 5.10.
<PAGE> 161
SCHEDULE 5.14(a)
Employee Benefit Plans
(i) RPS Plans
RPS Realty Trust Retirement Savings Plan (401(k))
Group Medical Plan (Chubb LifeAmerica Policy No. 334153-000; Booklet
B9195) (Medical 6.93)
Dental Plan
Group Life Insurance
See Schedule 5.14(g)
(ii) Employment Agreements
Agreement dated December 31, 1988 between RPS Realty Trust and Herbert
Liechtung.
Agreement dated December 31, 1988 between RPS Realty Trust and Joel M.
Pashcow.
(iii) Agreements to Modify Existing RPS Plans and Employment Agreements
Termination Agreement dated as of March 1, 1995 between the Trust and
Herbert Liechtung, as such agreement may be amended pursuant to Section
6.27 or otherwise.
Termination Agreement that may be entered into between the Trust and
Joel Pashcow pursuant to Section 6.27 of the Master Agreement.
<PAGE> 162
SCHEDULE 5.14(b)
Amendments to RPS Plans Prior to Closing
See Schedule 1.9.
<PAGE> 163
SCHEDULE 5.14(e)
Pending Matters With Respect to RPS Plans
None.
<PAGE> 164
SCHEDULE 5.14(f)
Liabilities With Respect to RPS Plans
Employment Agreement dated December 31, 1988 between RPS Realty Trust and
Herbert Liechtung.
Employment Agreement dated December 31, 1988 between RPS Realty Trust and Joel
M. Pashcow.
Termination Agreement dated as of March 1, 1995 between the Trust and Herbert
Liechtung, as such agreement may be amended pursuant to Section 6.27 or
otherwise.
Termination Agreement to be entered into with Joel Pashcow pursuant to Section
6.27 of the Master Agreement.
See Schedule 5.14(g).
<PAGE> 165
SCHEDULE 5.14(g)
Severance and Unemployment Compensation
(i) The following employees will be entitled to the following payments upon
the Closing of the Contemplated Transactions or earlier as determined by
management (assuming the Closing occurs on September 30, 1995).
<TABLE>
<CAPTION>
Discretionary
Employer Contribution
Severance Stay Bonus to 401(k) Plan
--------- ---------- --------------
<S> <C> <C> <C>
Stanley Rappoport $ 83,982 $ 20,996 $ 6,075
Edwin R. Frankel 136,784 79,791 5,821
John J. Johnston, Jr 129,643 -- 5,695
Steven Liechtung 77,348 42,922 5,522
Nancy Comerford 55,850 -- 2,391
Katherine Economos 44,718 -- 1,986
Evelyn Wilkowski 18,767 -- 1,503
Marie Trupia 14,155 -- 1,263
Lisa Rubio 10,615 -- 1,471
Maureen Dudley 6,228 -- 1,318
Eleanor Curatala -- 7,872 1,782
</TABLE>
(ii) Herbert Liechtung and Joel M. Pashcow will be entitled to termination
payments in accordance with termination agreements to be entered into
prior to Closing pursuant to Section 6.27 of the Master Agreement.
<PAGE> 166
SCHEDULE 5.15
Employees; Labor Relations
See Schedule 5.14(g).
Termination Agreement dated as of March 1, 1995 between RPS Realty Trust and
Herbert Liechtung, as such agreement may be amended pursuant to Section 6.27 or
otherwise.
Termination Agreement that may be entered into between the Trust and Joel
Pashcow pursuant to Section 6.27 of the Master Agreement.
<PAGE> 167
SCHEDULE 5.16
Undisclosed Liabilities
See Schedule 1.10.
See Schedule 5.9.
See Schedule 5.14(f).
See Schedule 5.14(g).
<PAGE> 168
SCHEDULE 5.18
RPS REALTY TRUST
CONSOLIDATED
PRO-FORMA INFORMATION
FOR THE YEAR ENDED 12/31/94
<TABLE>
<CAPTION>
CHESTER COMMACK CROFTON LANTANA SUNSHINE
------- ------- ------- ------- --------
<S> <C> <C> <C> <C> <C>
Net income per financial statements 688,162 294,910 788,289 474,705 588,275
Adjustments:
Interest & Depreciation 157,042 33,575 610,805 64,471 195,188
Non-recurring income -- -- (179,786) (24,517) (28,175)
Non-recurring expenses -- -- 53,561 49,500 89,425
------------------------------------------------------------------------
Pro-forma funds from operations 845,204 328,485 1,272,869 564,159 844,713
Pro-forma adjusted for 12 months of operations 1,733,700
---------
Steps 3, 4, 5, 7 240,722 -- 44,230 37,903 (42,762)
Step 8 (9,194) -- -- (24,823) (12,034)
Step 11 Straightlining of leases
------------------------------------------------------------------------
Estimated Pro-Forma funds at 12/31/95 1,965,228 328,485 1,317,099 577,239 789,917
Less: Est. TI & Commissions (4,420) -- -- (15,750) (16,778)
------------------------------------------------------------------------
Estimated Pro-forma funds available for
distribution for the 12 months ended 12/31/95 1,960,808 328,485 1,317,099 561,489 773,139
========================================================================
<CAPTION>
TRINITY CONSOLIDATED
------- ------------
<S> <C> <C>
Net income per financial statements 154,502 2,300,681*
Adjustments:
Interest & Depreciation 42,082 946,121*
Non-recurring income -- (232,478)
Non-recurring expenses 32,697 225,183
-----------------------
Pro-forma funds from operations 229,281 3,239,507
Pro-forma adjusted for 12 months of operations 1,733,700
---------
Steps 3, 4, 5, 7 20,346 300,439
Step 8 (7,722) (53,773)
Step 11 Straightlining of leases
-----------------------
Estimated Pro-Forma funds at 12/31/95 241,905 5,219,873
Less: Est. TI & Commissions (4,809) (41,757)
-----------------------
Estimated Pro-forma funds available for
distribution for the 12 months ended 12/31/95 237,096 5,178,116
=======================
</TABLE>
- -----------------
* Chester pro forma for the 12 months of operation of $1,733,700 is included
in Consolidated totals which represents the actual for 1994 of $845,204 for
approximately 5.5 months of operation annualized for a 12-month period.
<PAGE> 169
SCHEDULE 6.5
March 30, 1995
MEMORANDUM
TO: Dennis Gershenson
Richard J. Burstein, Esq.
FROM: David Stockert
RE: Outstanding Information
The following represents a list of the outstanding information that is
necessary for the RPS Board of Trustees to evaluate the proposed transaction:
1. West Oaks I
(a) Documentation confirming that the interest rate under the
tax-free debt originally held by Aetna has been reset from 10.125% to
7.75%; and
(b) If the tax-free debt originally held by Aetna is accelerated
by the lender in 7/97 pursuant to the call right, confirm the amounts
that Service Merchandise and K-Mart would be obligated to pay under
their respective leases and the manner in which such amounts are
computed.
2. Confirm the commencement dates under the seven leases executed
since October 1, 1994.
3. Analyze the magnitude and impact of the Michigan Single Business
Tax when the ten year period to carry forward deductions ends and the
effect that the ownership of all of the properties by the operating
partnership will have on the amount of the tax.
4. Provide revised financial for the management company, including a
breakdown of 3rd party management contracts and compute the net income
attributable to 3rd party management contracts, and copies of all 3rd party
management contracts.
5. Blue Ash
(a) Confirm the present computation of percentage rent under the
Building Lease;
(b) Provide the 1993 tax return for KM Blue Ash;
<PAGE> 170
(c) Analyze the impact of the balloon payment and confirm that
KM Blue Ash is obligated to make the Aetna debt payments including the
balloon payment, but that KM Blue Ash is entitled to offset these
amounts, including the balloon payment on a continuing basis, against
all rent payable to Concord under the Building Lease;
(d) Confirm whether the Kroger parcel is separately assessed for
real estate tax purposes.
cc: Alan M. Hurvitz, Esq.
Elizabeth H. Mai, Esq.
<PAGE> 171
SCHEDULE 6.13
1. Partnership Amendments as are necessary to obtain Ramco Partners consent.
<PAGE> 172
SCHEDULE 6.16
RAMCO PROPERTY DEBT THAT WILL BE
REPAID
<TABLE>
<CAPTION>
Actual Balance
Lender at 12-31-94
------ --------------
<S> <C> <C>
Tel-Twelve Mall First of Boston 30,915,000
Tel-Twelve Mall Huntington Bank 87,495
Tel-Twelve Mall Huntington Bank 9,950
Ramco Fraser Bank of Boston 2,238,511
Ramco Fraser Huntington Bank 16,943
Ramco Lapeer NBD Bank, N.A. 9,141,924
Ramco South Naples Bank of Boston 1,044,240
Southfield Plaza Huntington Bank 0
Ramco Singer Bank One 7,260,734
West Allis Shopping Center Bank of Boston 14,730,000
Ford-Sheldon Huntington Bank 526,017
Ford-Sheldon Aetna Life 5,857,385
Ferndale Plaza Sun Life 1,782,954
Ferndale Plaza Land Contract 63,628
KMW Sterling Northwestern Mutual Life 1,663,380
KMW Sterling Huntington Bank 9,333
Ramco Oakbrook Bank of Boston 1,426,400
Sterling Mall Mutual Benefit 5,881,859
Sterling Mall First of America 1,815,363
Sterling Mall Land Contract 622,037
Sterling Mall Land Contract 194,975
W & G Realty Aetna Life 4,368,226
Ramco Jackson NBD Bank, N.A. 25,142,612
Ramco Jackson Huntington Bank 49,570
</TABLE>
<PAGE> 173
<TABLE>
<S> <C> <C>
Ramco Lansing Bank of Boston 4,222,958
LA II Group--North
Towne/OfficeMax Michigan National Bank 1,950,000
Roseville Plaza Barclays Bank 9,793,108
Southfield Plaza Barclays Bank 8,741,633
Spring Meadow Travelers1 4,311,000
West Oaks I Huntington Bank 7,778
UNUM Life Insurance 4,370,111
West Oaks II Huntington Bank 10,242
West Oaks II Travelers1 773,000
</TABLE>
- --------
1. Source of pay-down will be line of credit.
<PAGE> 174
SCHEDULE 7.4(f)
1. The release of 2,300 gallons of gasoline from a product line break at the
Shell Food Mart, Jackson Crossing Shopping Center, occurring August, 1986.
2. The release of 1,200 gallons of gasoline from a delivery line rupture at
the Shell Food Mart, Jackson Crossing Shopping Center, occurring October,
1991.
3. The release of gasoline from four (4) underground storage tanks while
previously located at, but removed in 1987 from, Marathon Gas Station
located on the Southwest corner of Lapeer and Clarkston Roads, Lake Orion,
Michigan and the ground water contamination that has been identified in the
environmental reports relating to the Lake Orion property.
<PAGE> 175
SCHEDULE 7.5(e)
The release or releases of materials that have occurred or are occurring, from
whatever source or sources, that result in the presence of materials in the well
water or groundwater at the Trinity Shopping Center are identified in connection
with investigations described in the letters from the New York Department of
Environmental Conservation to Stanley Rappoport dated March 20, 1995.
<PAGE> 176
SCHEDULE 8.69
1. Joanne Fabrics Ferndale
2. Silkcorp Kentwood
3. Kabob Grill S-12
4. Salad Galley Spring Meadows
5. F&M Distributors East Ridge
6. Lee Wards Spring Meadows
<PAGE> 177
SCHEDULE 12.7
RIGHT OF FIRST OFFER.
(a) If the Continuing Trustees determine to solicit, or cause to be
solicited, proposals for the acquisition (whether by means of a sale of stock,
exchange, consolidation, sale of assets or merger) of the Operating
Partnership's properties (the "Properties") pursuant to the Special Tax
Liquidation provision set forth in Section 12.7, the Continuing Trustees shall
first give the Ramco Principals written notice (the "Offer Notice") of such
determination, which notice shall include a term sheet stating, among other
material terms, the minimum sales price that the Continuing Trustees would
entertain for the Properties (the "Target Price"). The Ramco Principals shall
have the right for a period of 60 days following the delivery of the Offer
Notice (the "Ramco Offeree Acceptance Period") to accept the offer to purchase
all but not less than all the Properties at the Target Price and upon the other
terms provided with the Offer Notice. Notwithstanding the foregoing, if an Offer
Notice is delivered the Ramco Principals shall have the right to purchase in the
manner contemplated by subsection (b) below for cash the Trust's entire
partnership interests in the Operating Partnership at a price equal to the
amount the Trust would have been entitled to receive upon dissolution of the
Operating Partnership pursuant to the liquidation formula set forth in Section
13.2 of the Partnership Agreement if the Operating Partnership had sold all the
properties for cash at the Target Price.
(b) The Ramco Principals shall, if they so desire, exercise their right of
first offer by delivering to the Continuing Trustees written notice of their
election prior to 5:00 p.m. New York City time on or before the last day of the
Ramco Offeree Acceptance Period. Only a single Person controlled solely by one
or more of the Ramco Principals shall be permitted to accept the offer set forth
in the Offer Notice. The acceptance of the offer to purchase all of the
Properties shall identify the committed source of financing for such purchase or
provide evidence that the Person which is accepting the offer is able to effect
the purchase. The Continuing Trustees shall, as soon as reasonably possible,
negotiate in good faith a definitive acquisition agreement containing
appropriate provisions customary for a transaction of the contemplated type;
provided, however, that if the Continuing Trustees and the Person which is
accepting the offer are unable to conclude the negotiation of such definitive
agreement within 45 days of the delivery of the acceptance of the offer (the
"Negotiation Period"), the Continuing Trustees shall be free to resume their
efforts to sell the Properties to other prospective buyers in accordance with
subsection (c) below.
(c) If the Ramco Principals do not accept the offer included in the Offer
Notice during the Ramco Offeree Acceptance Period, or the Continuing Trustees
and the Person which is accepting the offer set forth in such Notice are unable
to conclude negotiations of a definitive agreement during the Negotiation
Period, the Continuing Trustees shall have the right for a period of 180 days
thereafter to sell the Properties or, within such 180-day period, to enter into
a definitive agreement to sell such Properties within 90 days of the date of
such agreement for a sales price equal to or greater than the Target Price and
upon terms that are not materially less favorable to the Operating Partnership
than the terms provided to the Ramco Principals in the Offer Notice.
(d) If the Continuing Trustees receive a written offer for the Properties
at any time during such 180-day period which is acceptable to the Continuing
Trustees but is less than the Target Price or upon terms materially less
favorable to the Operating Partnership than the terms provided to the Ramco
Principals as set forth in the Offer Notice (the "Below Target Price Offer"),
the Continuing
<PAGE> 178
Trustees shall promptly deliver a copy of such written offer to the Ramco
Principals. During the 30- day period following delivery of such written offer,
a single Person controlled by one or more of the Ramco Principals shall have the
right to accept the offer to purchase all, but not less than all, of the
Properties on the terms reflected in the Below Target Price Offer.
Notwithstanding the foregoing, if a Below Target Price Offer is delivered the
Ramco Principals shall have the right to purchase in the manner contemplated by
subsection (b) above for cash the Trust's entire partnership interests in the
Operating Partnership at a price equal to the amount the Trust would have been
entitled to receive upon dissolution of the Operating Partnership pursuant to
the liquidation formula set forth in Section 13.2 of the Partnership Agreement
if the Operating Partnership had sold all the Properties for cash at the Below
Target Price Offer. The Person which has the right to accept such offer on
behalf of the Ramco Principals shall, if it so desires, exercise such right by
delivering to the Continuing Trustees written notice of its election prior to
5:00 p.m. New York City time on or before the final day of such additional
30-day period and the Continuing Trustees and the Person which is accepting such
offer shall then negotiate a definitive acquisition agreement in the manner
contemplated by subsection (b) above. If (x) the Person entitled to accept such
offer on behalf of the Ramco Principals does not elect to accept the offer to
purchase the Properties on such terms within such 30-day period or the
Continuing Trustees and the Person which has accepted such offer on behalf of
the Ramco Principals are unable to conclude negotiations of a definitive
agreement within 45 days of the date of the acceptance of the Below Target Price
Offer or (y) if the Person entitled to accept such offer does not provide
evidence of the committed source of financing for such purchase within 30 days
after such offer was accepted, the Continuing Trustees shall have 180 days to
consummate the sale of the Properties at a price and upon terms that are not
materially less favorable to the Operating Partnership than the price and terms
specified in the written offer delivered to Ramco Principals.
(e) If a Person controlled by the Ramco Principals enters into a definitive
agreement to purchase the Properties upon the terms set forth in the Offer
Notice or the Below Target Price Offer (as the case may be) and fails to
consummate the purchase of the Properties upon the terms set forth in such
agreement, the Continuing Trustees (on behalf of the Operating Partnership)
shall, in addition to any other rights the Trust or the Operating Partnership
may have at law or equity, have the option to sell the Properties free and clear
of the right of first offer and price restriction set forth herein.
(f) The right of first offer granted to the Ramco Principals herein shall
immediately terminate if at any time one of the following events occurs: (i) the
Ramco Principals collectively hold beneficially and of record less than 600,000
OP Units, (ii) the OP Units held by the Ramco Principals are exchangeable into
less than 10% of the outstanding Shares or (iii) the Ramco Principals sell,
exchange, transfer or dispose of more than 50% of the OP Units issued to them at
Closing.
(g) Except as expressly permitted herein, the right of first offer granted
to the Ramco Principals is not assignable to any Person.
Q-49
<PAGE> 179
EXHIBIT A
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
RAMCO-GERSHENSON PROPERTIES, L.P.
_____________, 1995
<PAGE> 180
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1 DEFINED TERMS............................................................. 1
ARTICLE 2 ORGANIZATIONAL MATTERS.................................................... 13
Section 2.1 Continuation...................................................... 13
Section 2.2 Name.............................................................. 13
Section 2.3 Registered Office and Agent; Principal Office..................... 13
Section 2.4 Power of Attorney................................................. 14
Section 2.5 Term.............................................................. 15
ARTICLE 3 PURPOSE................................................................... 15
Section 3.1 Purpose and Business.............................................. 15
Section 3.2 Powers............................................................ 16
ARTICLE 4 CAPITAL CONTRIBUTIONS..................................................... 16
Section 4.1 Capital Contributions of the Partners............................. 16
Section 4.2 Additional Funds; Restrictions on General Partner................. 17
Section 4.3 Issuance of Additional Partnership Interests; Admission of
Additional Limited Partners................................. 18
Section 4.4 Intentionally Omitted............................................. 18
Section 4.5 Repurchase of REIT Shares......................................... 18
Section 4.6 No Third Party Beneficiary........................................ 19
Section 4.7 No Interest; No Return............................................ 19
Section 4.8 No Preemptive Rights.............................................. 19
ARTICLE 5 DISTRIBUTIONS............................................................. 19
ARTICLE 6 ALLOCATIONS............................................................... 20
ARTICLE 7 MANAGEMENT AND OPERATIONS OF BUSINESS..................................... 21
Section 7.1 Management........................................................ 21
Section 7.2 Certificate of Limited Partnership................................ 25
Section 7.3 Reimbursement of the General Partner and the Company.............. 25
Section 7.4 Outside Activities of the General Partner......................... 26
Section 7.5 Contracts with Affiliates......................................... 26
Section 7.6 Indemnification................................................... 27
Section 7.7 Liability of the General Partner.................................. 28
Section 7.8 Limited Partners' Right to Bring Derivative Lawsuits.............. 29
Section 7.9 Other Matters Concerning the General Partner...................... 29
Section 7.10 Title to Partnership Assets....................................... 30
</TABLE>
i
<PAGE> 181
<TABLE>
<CAPTION>
<S> <C>
Section 7.11 Reliance by Third Parties......................................... 30
ARTICLE 8 RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS................................ 31
Section 8.1 Limitation of Liability........................................... 31
Section 8.2 Management of Business............................................ 31
Section 8.3 Outside Activities of Limited Partners............................ 31
Section 8.4 Return of Capital................................................. 32
Section 8.5 Rights of Limited Partners Relating to the Partnership............ 32
Section 8.6 Exchange Rights Agreement......................................... 33
ARTICLE 9 BOOKS, RECORDS, ACCOUNTING AND REPORTS.................................... 33
Section 9.1 Records and Accounting............................................ 33
Section 9.2 Fiscal Year....................................................... 33
Section 9.3 Reports........................................................... 34
ARTICLE 10 TAX MATTERS............................................................... 34
Section 10.1 Preparation of Tax Returns........................................ 34
Section 10.2 Tax Elections..................................................... 34
Section 10.3 Tax Matters Partner............................................... 35
Section 10.4 Organizational Expenses........................................... 36
Section 10.5 Withholding....................................................... 36
ARTICLE 11 TRANSFERS AND WITHDRAWALS................................................. 37
Section 11.1 Transfer.......................................................... 37
Section 11.2 Transfer of the Company's General Partner Interest and Limited
Partner Interest.............................................. 38
Section 11.3 Limited Partners' Rights to Transfer.............................. 38
Section 11.4 Substituted Limited Partners...................................... 39
Section 11.5 Assignees......................................................... 40
Section 11.6 General Provisions................................................ 40
ARTICLE 12 ADMISSION OF PARTNERS..................................................... 41
Section 12.1 Admission of Successor General Partner............................ 41
Section 12.2 Admission of Additional Limited Partners.......................... 42
Section 12.3 Amendment of Agreement and Certificate of Limited Partnership..... 42
ARTICLE 13 DISSOLUTION, LIQUIDATION AND TERMINATION.................................. 43
Section 13.1 Dissolution....................................................... 43
Section 13.2 Winding Up........................................................ 44
Section 13.3 No Obligation to Contribute Deficit............................... 45
Section 13.4 Rights of Limited Partners........................................ 45
Section 13.5 Notice of Dissolution............................................. 46
Section 13.6 Termination of Partnership and Cancellation of Certificate of
Limited Partnership........................................... 46
</TABLE>
ii
<PAGE> 182
<TABLE>
<CAPTION>
<S> <C>
Section 13.7 Reasonable Time for Winding-Up.................................... 46
Section 13.8 Waiver of Partition............................................... 46
Section 13.9 Special Tax Liquidation........................................... 46
ARTICLE 14 AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS.............................. 49
Section 14.1 Amendments........................................................ 49
Section 14.2 Meetings of the Partners.......................................... 50
ARTICLE 15 GENERAL PROVISIONS........................................................ 51
Section 15.1 Addresses and Notice.............................................. 51
Section 15.2 Titles and Captions............................................... 51
Section 15.3 Pronouns and Plurals.............................................. 52
Section 15.4 Further Action.................................................... 52
Section 15.5 Binding Effect.................................................... 52
Section 15.6 Creditors......................................................... 52
Section 15.7 Waiver............................................................ 52
Section 15.8 Counterparts...................................................... 52
Section 15.9 Applicable Law.................................................... 52
Section 15.10 Invalidity of Provisions.......................................... 53
Section 15.11 Entire Agreement.................................................. 53
Section 15.12 Guaranty by the Company........................................... 53
</TABLE>
EXHIBITS
Exhibit A - Partners' Contributions and Partnership Interests
Exhibit B - Allocations
Exhibit C - Exchange Rights Agreement
iii
<PAGE> 183
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
RAMCO-GERSHENSON PROPERTIES, L.P.
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
RAMCO-GERSHENSON PROPERTIES, L.P. (this "AGREEMENT"), dated as of __________,
1995, is entered into by and among Ramco-Gershenson Properties Trust, a Maryland
business trust as successor to RPS Realty Trust (the "COMPANY"), Ramco REIT,
Inc., a Delaware corporation ("RAMCO REIT") and the Persons (as defined below)
whose names are set forth on Exhibit A attached hereto (as it may be amended
from time to time).
WHEREAS, Ramco REIT, as the original general partner, formed Ramco-
Gershenson Properties, L.P. (the "PARTNERSHIP") pursuant to the Revised Uniform
Limited Partnership Act of the State of Delaware by filing a certificate of
limited partnership on __________, 1994 with the Secretary of State of the State
of Delaware and entering into a limited partnership agreement dated as of
_________, 1994 (the "ORIGINAL PARTNERSHIP AGREEMENT").
WHEREAS, Ramco REIT desires to admit the Company as a general
partner and the Persons whose names are set forth on Exhibit A as additional
partners, pursuant to which Ramco REIT will withdraw, and to continue the
existence of the Partnership and to amend and restate the Original Partnership
Agreement in its entirety;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties do hereby agree as follows:
ARTICLE 1
DEFINED TERMS
The following definitions shall be for all purposes, unless
otherwise clearly indicated to the contrary, applied to the terms used in this
Agreement.
"ACT" means the Delaware Revised Uniform Limited Partnership Act, as
it may be amended from time to time, and any successor to such statute.
"ADDITIONAL LIMITED PARTNER" means a Person admitted to the
Partnership as a Limited Partner pursuant to Section 4.3 hereof and who is shown
as such on the books and records of the Partnership.
<PAGE> 184
"ADJUSTED CAPITAL ACCOUNT DEFICIT" means with respect to any
Partner, the negative balance, if any, in such Partner's Capital Account as of
the end of any relevant fiscal year, determined after giving effect to the
following adjustments:
(a) credit to such Capital Account any portion of such negative
balance which such Partner (i) is treated as obligated to restore to the
Partnership pursuant to the provisions of Section 1.704-1(b)(2)(ii)(c) of
the Regulations, or (ii) is deemed to be obligated to restore to the
Partnership pursuant to the penultimate sentences of Sections
1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations; and
(b) debit to such Capital Account the items described in Sections
1.704- 1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations.
"ADJUSTED CONTRIBUTION" means the Capital Contributions of any
Partner reduced by the total distributions to such Partner from Capital Events.
For purposes of this Agreement, the initial Adjusted Contribution of the Company
shall be equal to $120,600,000 and the initial Adjusted Contribution of Ramco
shall be equal to the value of the Ramco Contribution Assets, as defined in
Section 1.1 of the Master Agreement. With respect to the Company, the Adjusted
Contribution shall include the difference, if any, between gross proceeds from
the future issuance of REIT Shares, if any, and the proceeds actually received
by the Company.
"AFFILIATE" means, (a) with respect to any individual Person, any
member of the Immediate Family of such Person or a trust established for the
benefit of such member, or (b) with respect to any Entity, any Person which,
directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, any such Entity.
"AGREEMENT" means this Amended and Restated Agreement of Limited
Partnership, as originally executed and as amended, modified, supplemented or
restated from time to time, as the context requires.
"ASSIGNEE" means a Person to whom one or more OP Units have been
transferred in a manner permitted under this Agreement, but who has not become a
Substituted Limited Partner, and who has the rights set forth in Section 11.5.
"AVAILABLE CASH" means, with respect to the applicable period of
measurement (i.e., any period beginning on the first day of the fiscal year,
quarter or other period commencing immediately after the last day of the fiscal
year, quarter or other applicable period for purposes of the prior calculation
of Available Cash for or with respect to which a distribution has been made, and
ending on the last day of the fiscal year, quarter or other applicable period
immediately preceding the date of the calculation) the excess, if any, as of
such date, of (a) the gross cash receipts of the Partnership for such period
from all sources whatsoever, including, without limitation, the following:
2
<PAGE> 185
(i) all rents, revenues, income and proceeds derived by the
Partnership from its operations, including, without limitation,
distributions received by the Partnership from any Entity in which the
Partnership has an interest; (ii) all proceeds and revenues received by
the Partnership on account of any sales of property of the Partnership or
as a refinancing of or payments of principal, interest, costs, fees,
penalties or otherwise on account of any borrowings or loans made by the
Partnership or financings or refinancings of any property of the
Partnership; (iii) the amount of any insurance proceeds and condemnation
awards received by the Partnership; (iv) all capital contributions or
loans received by the Partnership from its Partners; (v) all cash amounts
previously reserved by the Partnership, to the extent such amounts are no
longer needed for the specific purposes for which such amounts were
reserved; and (vi) the proceeds of liquidation of the Partnership's
property in accordance with this Agreement,
over (b) the sum of:
(i) all operating costs and expenses, including costs relating to
tenant improvements, brokerage expenses, taxes and other expenses of the
Properties, of the Partnership and capital expenditures made during such
period (without deduction, however, for any capital expenditures, charges
for Depreciation or other expenses not paid in cash or expenditures from
reserves described in (viii) below); (ii) all costs and expenses expended
or paid during such period in connection with the sale or other
disposition, or financing or refinancing, of property of the Partnership
or the recovery of insurance or condemnation proceeds; (iii) all fees
provided for under this Agreement; (iv) all debt service, including
principal and interest, paid during such period on all indebtedness
(including under any line of credit) of the Partnership; (v) all capital
contributions, advances, reimbursements or similar payments made to any
Person in which the Partnership has an interest; (vi) all loans made by
the Partnership in accordance with the terms of this Agreement; (vii) all
reimbursements to the General Partner or its Affiliates during such
period; and (viii) any new reserves or increases in reserves reasonably
determined by the General Partner to be necessary for working capital,
capital improvements, payments of periodic expenditures, debt service or
other purposes for the Partnership or any Person in which the Partnership
has an interest.
Notwithstanding the foregoing, Available Cash shall not include any
cash received or reductions in reserves, or take into account any disbursements
made or reserves established, after commencement of the dissolution and
liquidation of the Partnership.
"BELOW TARGET PRICE OFFER" has the meaning set forth in Section
13.9B(4) hereof.
"CAPITAL ACCOUNT" means with respect to any Partner, the Capital
Account maintained for such Partner in accordance with the following provisions:
3
<PAGE> 186
a. to each Partner's Capital Account there shall be credited (i)
such Partner's Capital Contributions, provided, however, that solely for
purposes of determining the Capital Account balance of the Company, the
Capital Contribution which consists of cash shall be equal to $75 million
and shall not be reduced by those expenses described in Section 3.2(e) of
the Master Agreement, (ii) such Partner's distributive share of Net
Income and any items in the nature of income or gain which are specially
allocated to such Partner pursuant to Paragraphs 1 and 2 of Exhibit B and
(iii) the amount of any Partnership liabilities assumed by such Partner
or which are secured by any asset distributed to such Partner;
b. to each Partner's Capital Account there shall be debited (i) the
amount of cash and the Gross Asset Value of any Property distributed to
such Partner pursuant to any provision of this Agreement, (ii) such
Partner's distributive share of Net Losses and any items in the nature of
expenses or losses which are specially allocated to such Partner pursuant
to Paragraphs 1 and 2 of Exhibit B and (iii) the amount of any
liabilities of such Partner assumed by the Partnership or which are
secured by any asset contributed by such Partner to the Partnership; and
c. in the event all or a portion of a Partnership Interest is
transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Capital Account of the transferor to the
extent it relates to the transferred Partnership Interest.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Sections 1.704-1(b) and 1.704-2 of the Regulations, and shall be interpreted and
applied in a manner consistent with such Regulations. In the event the General
Partner shall reasonably determine that it is prudent to modify the manner in
which the Capital Accounts, or any debits or credits thereto (including, without
limitation, debits or credits relating to liabilities which are secured by
contributed or distributed assets or which are assumed by the Partnership, the
General Partner or any Limited Partner) are computed in order to comply with
such Regulations, the General Partner may make such modification; provided that
it does not have an adverse effect on the amounts distributable to any Partner
pursuant to Article 13 hereof upon the dissolution of the Partnership.
"CAPITAL CONTRIBUTION" means, with respect to any Partner, any cash,
cash equivalents or the Gross Asset Value of property which such Partner
contributes or is deemed to contribute to the Partnership pursuant to Article 4
hereof.
"CAPITAL EVENT" means any Partnership transaction not in the
ordinary course of its business including, without limitation, principal
payments, prepayments, prepayment penalties, sales, exchanges, foreclosures or
other dispositions of Property owned by the Partnership, recoveries of damage
awards and insurance proceeds not used to rebuild (other
4
<PAGE> 187
than the receipt of contributions to the capital of the Partnership and business
or rental interruption insurance proceeds not used to rebuild).
"CERTIFICATE" means the Certificate of Limited Partnership relating
to the Partnership filed on ________, 1994 in the office of the Delaware
Secretary of State, as amended from time to time in accordance with the terms
hereof and the Act.
"CODE" means the Internal Revenue Code of 1986, as amended and in
effect from time to time, as interpreted by the applicable regulations
thereunder. Any reference herein to a specific section or sections of the Code
shall be deemed to include a reference to any corresponding provision of future
law.
"CONSENT" means the consent or approval of a proposed action by a
Partner given in accordance with Section 14.2 hereof.
"CONTEMPLATED TRANSACTIONS" -- The transfer (via contribution,
merger or otherwise) of certain assets of Ramco and RPS to the Partnership,
amendments to RPS' Declaration of Trust and By-Laws, and the consummation and
performance of all related agreements.
"CONTINUING TRUSTEES" -- As of any time, shall mean those trustees
of RPS then in office who were trustees of RPS immediately prior to the closing
of the Contemplated Transactions; provided, however, if at any time the number
of Continuing Trustees is less than four, the remaining Continuing Trustees (by
a majority vote) shall elect such number of trustees who are not employees of
RPS, Ramco or their respective affiliates (the "INDEPENDENT TRUSTEES") to become
Continuing Trustees as may be necessary to cause the number of Continuing
Trustees to equal four whereupon such Independent Trustee(s) shall be deemed
Continuing Trustees for all purposes hereunder.
"CONTRIBUTED PROPERTY" means each property or other asset, other
than the Initial Contributed Property, in such form as may be permitted by the
Act, contributed or deemed contributed to the Partnership by any Partner
(including deemed contributions to the Partnership on termination and
reconstitution thereof pursuant to Section 708 of the Code).
"DECLARATION OF TRUST" means the Declaration of Trust of the
Company, as amended and restated from time to time.
"DEPRECIATION" means, with respect to any asset of the Partnership
for any fiscal year or other period, the depreciation, depletion, amortization
or other cost recovery deduction, as the case may be, allowed or allowable for
federal income tax purposes in respect of such asset for such fiscal year or
other period; provided, however, that except as otherwise provided in Section
1.704-2 of the Regulations, if there is a difference between the Gross Asset
Value (including the Gross Asset Value, as increased pursuant to paragraph 1 of
the definition of Gross Asset Value) and the adjusted tax basis of such asset at
the beginning
5
<PAGE> 188
of such fiscal year or other period, Depreciation for such asset shall be an
amount that bears the same ratio to the beginning Gross Asset Value of such
asset as the federal income tax depreciation, depletion, amortization or other
cost recovery deduction for such fiscal year or other period bears to the
beginning adjusted tax basis of such asset; provided, further, that if the
federal income tax depreciation, depletion, amortization or other cost recovery
deduction for such asset for such fiscal year or other period is zero,
Depreciation of such asset shall be determined with reference to the beginning
Gross Asset Value of such asset using any reasonable method selected by the
General Partner.
"EFFECTIVE DATE" means the date of closing of the transactions
contemplated by the Master Agreement.
"ENTITY" means any general partnership, limited partnership,
corporation, joint venture, trust, business trust, real estate investment trust,
limited liability company, cooperative or association.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time (or any corresponding provisions of succeeding
laws).
"EXCHANGE FACTOR" has the meaning set forth in the Exchange Rights
Agreement.
"EXCHANGE RIGHT" has the meaning set forth in the Exchange Rights
Agreement.
"EXCHANGE RIGHTS AGREEMENT" has the meaning set forth in Section
8.6.
"FINAL DETERMINATION" -- shall mean either (i) a decision, judgment,
decree or other order by the United States Tax Court that RPS or Atlantic (as
applicable), in its sole and absolute discretion, determines not to appeal or
(ii) if there is a development in the law which occurs after the date of this
Agreement which would cause either RPS or Atlantic Realty Trust, a Maryland real
estate investment trust ("ATLANTIC") (pursuant to the Tax Agreement dated
__________, 19__ by and between Atlantic and RPS (the "TAX AGREEMENT"),
substantially in the form of Exhibit B attached hereto), based on the advice of
independent tax counsel, to assess the impact of RPS' purchase of reverse
repurchase obligations during 1994 on RPS' REIT status significantly different
from those set forth in the opinion of counsel to RPS, substantially in the form
of Exhibit C attached hereto, a settlement with the IRS that is approved by
either RPS or Atlantic.
"GAAP" means United States generally accepted accounting principles,
as in effect from time to time.
"GENERAL PARTNER" means the Company, in its capacity as the general
partner of the Partnership, or its successors as general partner of the
Partnership.
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"GENERAL PARTNER INTEREST" means a Partnership Interest held by the
General Partner, in its capacity as general partner. A General Partner Interest
may be expressed as a number of OP Units.
"GROSS ASSET VALUE" means, with respect to any asset of the
Partnership, such asset's adjusted basis for federal income tax purposes, except
as follows:
1. the initial Gross Asset Value of any asset contributed by a
Partner to the Partnership shall be the gross fair market value of such
asset, without reduction for liabilities, as determined by the
contributing Partner and the Partnership on the date of contribution
thereof;
2. if the General Partner reasonably determines that an adjustment
is necessary or appropriate to reflect the relative economic interests of
the Partners, the Gross Asset Values of all Partnership assets shall be
adjusted in accordance with Sections 1.704-1(b)(2)(iv)(f) and (g) of the
Regulations to equal their respective gross fair market values, without
reduction for liabilities, as reasonably determined by the General
Partner, as of the following times:
a. a Capital Contribution (other than a de minimis Capital
Contribution) to the Partnership by a new or existing Partner as
consideration for a Partnership Interest; or
b. the distribution by the Partnership to a Partner of more
than a de minimis amount of Partnership assets as consideration for
the repurchase of a Partnership Interest; or
c. the liquidation of the Partnership within the meaning of
Section 1.704-1(b)(2)(ii)(g) of the Regulations;
3. the Gross Asset Values of Partnership assets distributed to any
Partner shall be the gross fair market values of such assets (taking
Section 7701(g) of the Code into account) without reduction for
liabilities, as reasonably determined by the General Partner as of the
date of distribution; and
4. the Gross Asset Values of Partnership assets shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such
assets pursuant to Sections 734(b) or 743(b) of the Code, but only to the
extent that such adjustments are taken into account in determining
Capital Accounts pursuant to Section 1.704- 1(b)(2)(iv)(m) of the
Regulations (as set forth in Exhibit B); provided, however, that Gross
Asset Values shall not be adjusted pursuant to this paragraph (4) to the
extent that the General Partner reasonably determines that an adjustment
pursuant to paragraph (2) above is necessary or appropriate in connection
with a transaction that would otherwise result in an adjustment pursuant
to this paragraph (4).
At all times, Gross Asset Values shall be adjusted by any Depreciation taken
into account with respect to the Partnership's assets for purposes of computing
Net Income and Net Loss.
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"IMMEDIATE FAMILY" means, with respect to any Person, such Person's
spouse, parents, parents-in-law, descendants, nephews, nieces, brothers,
sisters, brothers-in-law, sisters- in-law, stepchildren, sons-in-law and
daughters-in-law or any trust solely for the benefit of any of the foregoing
family members whose sole beneficiaries include the foregoing family members.
"INCAPACITY" or "INCAPACITATED" means, (i) as to any individual
Partner, death, total physical disability or entry by a court of competent
jurisdiction adjudicating him incompetent to manage his person or his estate;
(ii) as to any corporation which is a Partner, the filing of a certificate of
dissolution, or its equivalent, for the corporation or the revocation of its
charter; (iii) as to any partnership which is a Partner, the dissolution and
commencement of winding up of the partnership; (iv) as to any estate which is a
Partner, the distribution by the fiduciary of the estate's entire interest in
the Partnership; (v) as to any trustee of a trust which is a Partner, the
termination of the trust (but not the substitution of a new trustee); or (vi) as
to any Partner, the bankruptcy of such Partner. For purposes of this definition,
bankruptcy of a Partner shall be deemed to have occurred when (a) the Partner
commences a voluntary proceeding seeking liquidation, reorganization or other
relief under any bankruptcy, insolvency or other similar law now or hereafter in
effect; (b) the Partner is adjudged as bankrupt or insolvent, or a final and
nonappealable order for relief under any bankruptcy, insolvency or similar law
now or hereafter in effect has been entered against the Partner; (c) the Partner
executes and delivers a general assignment for the benefit of the Partner's
creditors; (d) the Partner files an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against the
Partner in any proceeding of the nature described in clause (b) above; (e) the
Partner seeks, consents to or acquiesces in the appointment of a trustee,
receiver or liquidator for the Partner or for all or any substantial part of the
Partner's properties; (f) any proceeding seeking liquidation, reorganization or
other relief of or against such Partner under any bankruptcy, insolvency or
other similar law now or hereafter in effect has not been dismissed within one
hundred twenty (120) days after the commencement thereof; (g) the appointment
without the Partner's consent or acquiescence of a trustee, receiver or
liquidator has not been vacated or stayed within ninety (90) days of such
appointment; or (h) an appointment referred to in clause (g) which has been
stayed is not vacated within ninety (90) days after the expiration of any such
stay.
"INDEMNITEE" means (i) any Person made a party to a proceeding by
reason of (A) such Person's status as (1) the General Partner, (2) a director,
trustee or officer of the Partnership or the General Partner, or (3) a director,
trustee or officer of any other Entity, each Person serving in such capacity at
the request of the Partnership or the General Partner, or (B) his or its
liabilities, pursuant to a loan guarantee or otherwise, for any indebtedness of
the Partnership or any Subsidiary of the Partnership (including, without
limitation, any indebtedness which the Partnership or any Subsidiary of the
Partnership has assumed or taken assets subject to); and (ii) such other Persons
(including Affiliates of the General Partner or the Partnership) as the General
Partner may designate from time to time (whether before or after the event
giving rise to potential liability), in its sole and absolute discretion.
"INITIAL CONTRIBUTED PROPERTY" means the property contributed to the
Partnership pursuant to the terms of the Master Agreement.
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"IRS" shall mean the Internal Revenue Service of the United States.
"LIEN" means any lien, security interest, mortgage, deed of trust,
charge, claim, encumbrance, pledge, option, right of first offer or first
refusal and any other right or interest of others of any kind or nature, actual
or contingent, or other similar encumbrance of any nature whatsoever.
"LIMITED PARTNER" means the Company and any other Person named as a
Limited Partner in Exhibit A, as such Exhibit may be amended from time to time,
or any Substituted Limited Partner or Additional Limited Partner, in such
Person's capacity as a Limited Partner of the Partnership.
"LIMITED PARTNER INTEREST" means a Partnership Interest of a Limited
Partner in the Partnership representing a fractional part of the Partnership
Interests of all Partners and includes any and all benefits to which the holder
of such a Partnership Interest may be entitled, as provided in this Agreement,
together with all obligations of such Person to comply with the terms and
provisions of this Agreement. A Limited Partner Interest may be expressed as a
number of OP Units.
"LIQUIDATING EVENT" has the meaning set forth in Section 13.1
hereof.
"LIQUIDATOR" has the meaning set forth in Section 13.2 hereof.
"LOCK-UP AGREEMENT" means that certain letter agreement by and
between certain Limited Partners and the Company, the form of which is attached
as Exhibit L to the Master Agreement.
"MASTER AGREEMENT" means the Master Agreement dated as of ________,
1995 among the Company, Ramco, Dennis Gershenson, Joel Gershenson, Bruce
Gershenson, Richard Gershenson, Michael A. Ward, Michael A. Ward U/T/A dated
2/22/77, as amended, the Partnership and each of the Ramco Contributing Parties
set forth therein.
"NEGOTIATION PERIOD" has the meaning set forth in Section 13.9B(2)
hereof.
"NET INCOME" or "NET LOSS" means, for each fiscal year or other
applicable period, an amount equal to the Partnership's taxable income or loss
for such year or period as determined for federal income tax purposes by the
General Partner, determined in accordance with Section 703(a) of the Code (for
this purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Section 703(a) of the Code shall be included in taxable
income or loss), adjusted as follows: (a) by including as an item of gross
income any tax-exempt income received by the Partnership and not otherwise taken
into account in computing Net Income or Net Loss; (b) by treating as a
deductible expense any expenditure of the Partnership described in Section
705(a)(2)(B) of the Code (or which is treated as a Section 705(a)(2)(B)
expenditure pursuant to Section 1.704-1(b)(2)(iv)(i) of the Regulations) and not
otherwise taken into account in computing Net Income or Net Loss, including
amounts paid or incurred to organize the Partnership (unless an election is made
pursuant to Section 709(b) of the Code) or to promote the sale of interests in
the Partnership and by treating
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deductions for any losses incurred in connection with the sale or exchange of
Partnership property disallowed pursuant to Section 267(a)(1) or 707(b) of the
Code as expenditures described in Section 705(a)(2)(B) of the Code; (c) by
taking into account Depreciation in lieu of depreciation, depletion,
amortization and other cost recovery deductions taken into account in computing
taxable income or loss; (d) by computing gain or loss resulting from any
disposition of Partnership property with respect to which gain or loss is
recognized for federal income tax purposes by reference to the Gross Asset Value
of such property rather than its adjusted tax basis; (e) in the event of an
adjustment of the Gross Asset Value of any Partnership asset which requires that
the Capital Accounts of the Partnership be adjusted pursuant to Sections
1.704-1(b)(2)(iv)(e), (f) and (g) of the Regulations, by taking into account the
amount of such adjustment as if such adjustment represented additional Net
Income or Net Loss pursuant to Exhibit B; and (f) by not taking into account in
computing Net Income or Net Loss items separately allocated to the Partners
pursuant to Paragraphs 1 and 2 of Exhibit B.
"NONRECOURSE DEDUCTIONS" has the meaning set forth in Sections
1.704-2(b)(1) and 1.704-2(c) of the Regulations.
"NONRECOURSE LIABILITIES" has the meaning set forth in Section
1.704-2(b)(3) of the Regulations.
"OFFER NOTICE" has the meaning set forth in Section 13.9B(1) hereof.
"OP UNIT" means a fractional, undivided share of the Partnership
Interests of all Partners issued pursuant to Sections 4.1, 4.2 and 4.3. The
number of OP Units outstanding and the Percentage Interests in the Partnership
represented by such OP Units are set forth in Exhibit A, as such Exhibit may be
amended from time to time. The ownership of OP Units shall be evidenced by such
form of certificate for units as the General Partner adopts from time to time
unless the General Partner determines that the OP Units shall be uncertificated
securities.
"PARTNER" means a General Partner or a Limited Partner, and
"Partners" means the General Partner and the Limited Partners collectively.
"PARTNER MINIMUM GAIN" means an amount, with respect to each Partner
Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if
such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Regulations Section 1.704-2(i)(3).
"PARTNER NONRECOURSE DEBT" has the meaning set forth in Regulations
Sec- tion 1.704-2(b)(4).
"PARTNER NONRECOURSE DEDUCTIONS" has the meaning set forth in
Regulations Section 1.704-2(i)(2), and the amount of Partner Nonrecourse
Deductions with respect to a Partner Nonrecourse Debt for a Partnership taxable
year shall be determined in accordance with the rules of Regulations Section
1.704-2(i)(2).
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"PARTNERSHIP" means the limited partnership formed under the Act and
pursuant to this Agreement, and any successor thereto.
"PARTNERSHIP INTEREST" means an ownership interest in the
Partnership representing a Capital Contribution by either a Limited Partner or
the General Partner and includes any and all benefits to which the holder of
such a Partnership Interest may be entitled as provided in this Agreement,
together with all obligations of such Person to comply with the terms and
provisions of this Agreement. A Partnership Interest may be expressed as a
number of OP Units.
"PARTNERSHIP MINIMUM GAIN" has the meaning set forth in Regulations
Section 1.704-2(b)(2), and the amount of Partnership Minimum Gain, as well as
any net increase or decrease in a Partnership Minimum Gain, for a Partnership
taxable year shall be determined in accordance with the rules of Regulations
Section 1.704-2(d).
"PARTNERSHIP RECORD DATE" means the record date established by the
General Partner for the distribution of Available Cash pursuant to Section 5.1
hereof, which record date shall be the same as the record date established by
the Company for a distribution to its shareholders of some or all of its portion
of such distribution.
"PARTNERSHIP YEAR" means the fiscal year of the Partnership, as set
forth in Section 9.2 hereof.
"PERCENTAGE INTEREST" means, as to a Partner, the fractional part of
the Partnership Interests owned by such Partner and expressed as a percentage as
specified in Exhibit A, as such Exhibit may be amended from time to time.
"PERMITTED PARTNERS" has the meaning set forth in subparagraph 1(b)
of Exhibit B.
"PERMITTED TRANSFEREE" means any person to whom OP Units are
Transferred in accordance with Section 11.3 of this Agreement.
"PERSON" means an individual or Entity.
"PRECONTRIBUTION GAIN" has the meaning set forth in subparagraph
3(c) of Exhibit B.
"PROPERTY" means any shopping center or retail property or other
real estate project in which the Partnership directly or indirectly, acquires
ownership of a fee or leasehold interest.
"QUARTER" means each of the three month periods ending on March 31,
June 30, September 30 and December 31.
"RAMCO" means Ramco-Gershenson, Inc., a Michigan corporation.
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"RAMCO OFFEREE ACCEPTANCE PERIOD" has the meaning set forth in
Section 13.9B(1) hereof.
"RAMCO PRINCIPALS" -- shall include Dennis Gershenson, Joel
Gershenson, Bruce Gershenson, Richard Gershenson, Michael A. Ward, and Michael
A. Ward, Trustee U/T/A dated 2/22/77, as amended.
"RAMCO REIT" has the meaning set forth in the heading to this
Agreement.
"REGULATIONS" means the final, temporary or proposed Income Tax
Regulations promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
"REIT" means a real estate investment trust as defined in Section
856 of the Code.
"REIT REQUIREMENTS" has the meaning set forth in Section 5.3.
"REIT SHARE" means a share of beneficial interest of the Company,
par value $.10 per share.
"REIT SHARES AMOUNT" has the meaning set forth in the Exchange
Rights Agreement.
"RESTRICTED PARTNER" has the meaning set forth in Section 1(b) of
Exhibit B.
"RPS" means RPS Realty Trust, a Massachusetts business trust.
"RPS CONTRIBUTION AGREEMENT" means each Asset Contribution Agreement
entered into by RPS and the Company pursuant to which the RPS Properties were
contributed to the Partnership.
"RPS PROPERTIES" has the meaning set forth in the Master Agreement.
"SPECIAL TAX LIQUIDATION" -- See Section 13.9A hereof.
"STOCK OPTION PLANS" means the General Partner's Amended and
Restated 1989 Employees' Stock Option Plan, Amended and Restated 1989 Trustees'
Stock Option Plan and the 1995 Stock Option Plan of the Company and any other
plan adopted from time to time by the General Partner pursuant to which REIT
Shares are issued, or options to acquire REIT Shares are granted, to employees
or trustees of the General Partner, employees of the Partnership or employees of
their respective Affiliates in consideration for services or future services.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership or other entity of which a majority of (i) the voting power of the
voting equity securities; or (ii) the outstanding equity interests, is owned,
directly or indirectly, by such Person.
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"SUBSTITUTED LIMITED PARTNER" means a Person who is admitted as a
Limited Partner to the Partnership pursuant to Section 11.4 hereof.
"TARGET PRICE" has the meaning set forth in Section 13.9B(1) hereof.
"TAX ITEMS" has the meaning set forth in Exhibit B.
"TERMINATING CAPITAL TRANSACTION" means any sale or other
disposition of all or substantially all of the assets of the Partnership or a
related series of transactions that, taken together, result in the sale or other
disposition of all or substantially all of the assets of the Partnership.
"TRANSFER" as a noun, means any sale, assignment, conveyance,
pledge, hypothecation, gift, encumbrance or other transfer, and as a verb, means
to sell, assign, convey, pledge, hypothecate, give, encumber or otherwise
transfer.
Certain additional terms and phrases have the meanings set forth in
Exhibit B.
ARTICLE 2
ORGANIZATIONAL MATTERS
Section 2.1 Continuation
The Partners hereby agree to continue the Partnership under and
pursuant to the Act. Except as expressly provided herein to the contrary, the
rights and obligations of the Partners and the administration and termination of
the Partnership shall be governed by the Act. The Partnership Interest of each
Partner shall be personal property for all purposes.
Section 2.2 Name
The name of the Partnership shall continue to be Ramco-Gershenson
Properties, L.P. The Partnership's business may be conducted under any other
name or names deemed advisable by the General Partner, including the name of the
General Partner or any Affiliate thereof. The words "Limited
Partnership,""L.P.,""Ltd." or similar words or letters shall be included in the
Partnership's name where necessary for the purposes of complying with the laws
of any jurisdiction that so requires. The General Partner in its sole and
absolute discretion may, upon 5 days prior written notice to the Limited
Partners, change the name of the Partnership.
Section 2.3 Registered Office and Agent; Principal Office
The address of the registered office of the Partnership in the State
of Delaware and the name and address of the registered agent for service of
process on the Partnership in the State of Delaware is The Corporation Trust
Company, 1029 Orange Street, Wilmington (New Castle County), Delaware 19801. The
principal office of the Partnership shall be 27600 Northwestern Highway, Suite
200, Southfield, Michigan 48034, or such other place as
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the General Partner may from time to time designate by notice to the Limited
Partners. The Partnership may maintain offices at such other place or places
within or outside the State of Delaware as the General Partner deems advisable.
Section 2.4 Power of Attorney
A. Each Limited Partner and each Assignee hereby constitutes and
appoints the General Partner, any Liquidator, and authorized officers and
attorneys-in-fact of each, and each of those acting singly, in each case with
full power of substitution, as its true and lawful agent and attorney-in-fact,
with full power and authority in its name, place and stead to:
(1) execute, swear to, acknowledge, deliver, file and
record in the appropriate public offices (a) all
certificates, documents and other instruments
(including, without limitation, this Agreement and the
Certificate and all amendments or restatements
thereof) that the General Partner or the Liquidator
deems appropriate or necessary to form, qualify or
continue the existence or qualification of the
Partnership as a limited partnership (or a partnership
in which the Limited Partners have limited liability)
in the State of Delaware and in all other
jurisdictions in which the Partnership may or plans to
conduct business or own property, including, without
limitation, any documents necessary or advisable to
convey any Contributed Property to the Partnership;
(b) all instruments that the General Partner deems
appropriate or necessary to reflect any amendment,
change, modification or restatement of this Agreement
in accordance with its terms; (c) all conveyances and
other instruments or documents that the General
Partner or the Liquidator deems appropriate or
necessary to reflect the dissolution and liquidation
of the Partnership pursuant to the terms of this
Agreement, including, without limitation, a
certificate of cancellation; (d) all instruments
relating to the admission, withdrawal, removal or
substitution of any Partner pursuant to, or other
events described in, Article 11, 12 or 13 hereof or
the Capital Contribution of any Partner; and (e) all
certificates, documents and other instruments relating
to the determination of the rights, preferences and
privileges of Partnership Interest; and
(2) execute, swear to, seal, acknowledge and file all
ballots, consents, approvals, waivers, certificates
and other instruments appropriate or necessary, in the
sole and absolute discretion of the General Partner or
any Liquidator, to make, evidence, give, confirm or
ratify any vote, consent, approval, agreement or other
action which is made or given by the Partners
hereunder or is consistent with the terms of this
agreement or appropriate or necessary, in the sole
discretion of the General Partner or any Liquidator,
to effectuate the terms or intent of this Agreement.
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Nothing contained herein shall be construed as authorizing the General Partner
or any Liquidator to amend this Agreement except in accordance with Article 14
hereof or as may be otherwise expressly provided for in this Agreement.
B. The foregoing power of attorney is hereby declared to be
irrevocable and a power coupled with an interest, in recognition of the fact
that each of the Partners will be relying upon the power of the General Partner
and any Liquidator to act as contemplated by this Agreement in any filing or
other action by it on behalf of the Partnership, and it shall survive and not be
affected by the subsequent Incapacity of any Limited Partner or Assignee and the
Transfer of all or any portion of such Limited Partner's or Assignee's OP Units
and shall extend to such Limited Partner's or Assignee's heirs, successors,
assigns and personal representatives. Each such Limited Partner or Assignee
hereby agrees to be bound by any representation made by the General Partner or
any Liquidator, acting in good faith pursuant to such power of attorney, and
each such Limited Partner or Assignee hereby waives any and all defenses which
may be available to contest, negate or disaffirm the action of the General
Partner or any Liquidator, taken in good faith under such power of attorney.
Each Limited Partner or Assignee shall execute and deliver to the General
Partner or the Liquidator, within fifteen (15) days after receipt of the General
Partner' s or Liquidator's request therefor, such further designation, powers of
attorney and other instruments as the General Partner or the Liquidator, as the
case may be, deems necessary to effectuate this Agreement and the purposes of
the Partnership.
Section 2.5 Term
The term of the Partnership shall commence on the date hereof and
shall continue until December 31, 2094, unless the Partnership is dissolved
sooner pursuant to the provisions of Article 13 or as otherwise provided by law.
Section 2.6 Original General Partner
Simultaneously with the execution and delivery of this Agreement and
effective as of such time, any contribution of the Ramco REIT, as original
general partner of the Partnership, will be returned and the Ramco REIT's
Partnership Interest will be cancelled.
ARTICLE 3
PURPOSE
Section 3.1 Purpose and Business
The purpose and nature of the business to be conducted by the
Partnership is to conduct any business that may be lawfully conducted by a
limited partnership organized pursuant to the Act including, without limitation,
to engage in the following activities: to acquire, hold, own, develop,
construct, improve, maintain, operate, sell, lease, transfer, encumber, convey,
exchange, and otherwise dispose of or deal with the Properties; to acquire,
hold, own, develop, construct, improve, maintain, operate, sell, lease,
transfer, encumber, convey, exchange, and otherwise dispose of or deal with real
and personal property of all
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kinds; to undertake such other activities as may be necessary, advisable,
desirable or convenient to the business of the Partnership; and to engage in
such other ancillary activities as shall be necessary or desirable to effectuate
the foregoing purposes. The Partnership shall have all powers necessary or
desirable to accomplish the purposes enumerated. In connection with the
foregoing, but subject to all of the terms, covenants, conditions and
limitations contained in this Agreement and any other agreement entered into by
the Partnership, the Partnership shall have full power and authority to enter
into, perform, and carry out contracts of any kind, to borrow money and to issue
evidences of indebtedness, whether or not secured by mortgage, trust deed,
pledge or other Lien, and, directly or indirectly, to acquire and construct
additional Properties necessary or useful in connection with its business.
Section 3.2 Powers
The Partnership is empowered to do any and all acts and things
necessary, appropriate, proper, advisable, incidental to or convenient for the
furtherance and accomplishment of the purposes and business described herein and
for the protection and benefit of the Partnership; provided, that the
Partnership shall not take, or refrain from taking, any action which, in the
judgment of the General Partner, in its sole and absolute discretion, (i) could
adversely affect the ability of the Company to continue to qualify as a REIT;
(ii) could subject the Company to any additional taxes under Section 857 or
Section 4981 of the Code; or (iii) could violate any law or regulation of any
governmental body or agency having jurisdiction over the Company or its
securities, unless such action (or inaction) shall have been specifically
consented to by the General Partner in writing.
ARTICLE 4
CAPITAL CONTRIBUTIONS
Section 4.1 Capital Contributions of the Partners
A. At the time of the execution of this Agreement, the Partners
shall make the Capital Contributions contemplated by the Master Agreement as set
forth in Exhibit A to this Agreement. To the extent the Partnership acquires any
property by the merger of any other Person into the Partnership, Persons who
receive Partnership Interests in exchange for their interests in the Person
merging into the Partnership shall become Partners and shall be deemed to have
made Capital Contributions as provided in the applicable merger agreement and as
set forth in Exhibit A, as amended to reflect such deemed Capital Contributions.
The Partners shall own OP Units in the amounts set forth for such Partner in
Exhibit A and shall have a Percentage Interest in the Partnership as set forth
in Exhibit A, which Percentage Interest shall be adjusted in Exhibit A from time
to time by the General Partner to the extent necessary to reflect accurately
exchanges, additional Capital Contributions, the issuance of additional OP Units
or similar events having an effect on any Partner's Percentage Interest. The
number of OP Units held by the General Partner, in its capacity as general
partner, shall be deemed to be the General Partner Interest. Except as provided
in Sections 4.2 and 10.5, the Partners shall have no obligation to make any
additional Capital Contributions or loans to the Partnership.
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Section 4.2 Additional Funds; Restrictions on General Partner
A. The sums of money required to finance the business and affairs
of the Partnership shall be derived from the initial Capital Contributions made
to the Partnership by the Partners as set forth in Section 4.1 and from funds
generated from the operation and business of the Partnership including, without
limitation, distributions directly or indirectly received by the Partnership
from any Property Partnership. In the event additional financing is needed from
sources other than as set forth in the preceding sentence for any reason, the
General Partner may, in its sole and absolute discretion, in such amounts and at
such times as it solely shall determine to be necessary or appropriate, (i)
cause the Partnership to issue additional Partnership Interests and admit
additional limited partners to the Partnership in accordance with Section 4.3;
(ii) make additional Capital Contributions to the Partnership (subject to the
provisions of Section 4.2B); (iii) cause the Partnership to borrow money, enter
into loan arrangements, issue debt securities, obtain letters of credit or
otherwise borrow money on a secured or unsecured basis; (iv) make a loan or
loans to the Partnership (subject to Section 4.2B); or (v) sell any assets or
properties of the Partnership. In no event shall the Limited Partners be
required to make any additional Capital Contributions or any loan to, or
otherwise provide any financial accommodation for the benefit of, the
Partnership.
B. The General Partner shall not issue any debt securities, any
preferred shares of beneficial interest or common shares of beneficial interest
(including additional REIT Shares (other than (i) as payment of the REIT Shares
Amount or (ii) in connection with the conversion or exchange of securities of
the General Partner solely in conversion or exchange for other securities of the
General Partner)) or rights, options, warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase any of the
foregoing (collectively, "SECURITIES"), other than to all holders of REIT
Shares, unless the General Partner shall (i) in the case of debt securities,
lend to the Partnership the proceeds of or consideration received for such
Securities on the same terms and conditions, including interest rate and
repayment schedule, as shall be applicable with respect to or incurred in
connection with the issuance of such Securities and the proceeds of, or
consideration received from, any subsequent exercise, exchange or conversion
thereof (if applicable); (ii) in the case of equity Securities senior or junior
to the REIT Shares as to dividends and distributions on liquidation, contribute
to the Partnership the proceeds of or consideration (including any property or
other non-cash assets) received for such Securities and the proceeds of, or
consideration received from, any subsequent exercise, exchange or conversion
thereof (if applicable), and receive from the Partnership, interests in the
Partnership in consideration therefor with the same terms and conditions,
including dividend, dividend priority and liquidation preference, as are
applicable to such Securities; and (iii) in the case of REIT Shares or other
equity Securities on a parity with the REIT Shares as to dividends and
distributions on liquidation, (including, without limitation, REIT Shares or
other Securities issued upon exercise of options issued under the Stock Option
Plans), contribute to the Partnership the proceeds of or consideration
(including any property or other non-cash assets) received for such Securities
and the proceeds of, or consideration received from, any subsequent exercise,
exchange or conversion thereof (if applicable), and receive from the Partnership
a number of additional OP Units in consideration therefor equal to the product
of (x) the number of shares REIT Shares or other equity Securities issued by the
General
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Partner, multiplied by (y) a fraction the numerator of which is one and the
denominator of which is the Exchange Factor in effect on the date of such
contribution.
Section 4.3 Issuance of Additional Partnership Interests; Admission
of Additional Limited Partners
In addition to any Partnership Interests issuable by the Partnership
pursuant to Section 4.2, the General Partner is authorized to cause the
Partnership to issue additional Partnership Interests (or options therefor) in
the form of OP Units or other Partnership Interests senior or junior to the OP
Units to any Persons at any time or from time to time, for consideration not
less than the fair market value thereof (or the fair market value as of the date
an option is granted) (as such fair market value is determined in the discretion
of the General Partner's Board of Trustees), and on such terms and conditions,
as the General Partner shall establish in each case in its sole and absolute
discretion, without any approval being required from any Limited Partner or any
other Person; provided, however, that (i) such issuance does not effect a
material adverse impact (as such material adverse impact is determined in the
discretion of the General Partner's Board of Trustees) on (A) the existing
Limited Partners' right to exercise the Exchange Rights pursuant to the Exchange
Rights Agreement or (B) the economic effect upon the Limited Partners of the
allocations set forth in Exhibit B (other than due to the issuance of OP Units
or other interests in the Partnership as set forth in this Section 4.3 or
Section 4.2B); (ii) such issuance does not cause the Partnership to become, with
respect to any employee benefit plan subject to Title I of ERISA or Section 4975
of the Code, a "party in interest" (as defined in Section 3(14) of ERISA) or a
"disqualified person" (as defined in Section 4975(e) of the Code); and (iii)
such issuance would not cause any portion of the assets of the Partnership to
constitute assets of any employee benefit plan pursuant to Section 2510.3-101 of
the regulations of the United States Department of Labor. Subject to the
limitations set forth in the preceding sentence, the General Partner may take
such steps as it, in its reasonable discretion, deems necessary or appropriate
to admit any Person as a Limited Partner of the Partnership, including, without
limitation, amending the Certificate, Exhibit A or any other provision of this
Agreement.
Section 4.4 Intentionally Omitted
Section 4.5 Repurchase of REIT Shares; Excess Shares
A. In the event that the Company shall elect to purchase from its
shareholders REIT Shares for the purpose of delivering such REIT Shares to
satisfy an obligation under any dividend reinvestment program adopted by the
Company, any employee stock purchase plan adopted by the Company, or any other
obligation or arrangement undertaken by the Company in the future, the purchase
price paid by the Company for such REIT Shares and any other expenses incurred
by the Company in connection with such purchase shall be considered expenses of
the Partnership and shall be reimbursed to the Company, subject to the condition
that: (i) if such REIT Shares subsequently are to be sold by the Company, the
Company shall pay to the Partnership any proceeds received by the
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Company for such REIT Shares (provided that an exchange of REIT Shares for OP
Units pursuant to the Exchange Rights Agreement would not be considered a sale
for such purposes); and (ii) if such REIT Shares are not re-transferred by the
Company within 30 days after the purchase thereof, the Company, as General
Partner, shall cause the Partnership to cancel a number of OP Units held by the
Company, as a Limited Partner, equal to the product of (x) the number of such
REIT Shares and (y) a fraction, the numerator of which is one and the
denominator of which is the Exchange Factor in effect on the date of such
contribution.
B. In the event the General Partner purchases Excess Shares (as
defined in the Declaration of Trust) pursuant to Article VII, Section 5 of the
Declaration of Trust, the Partnership will purchase from the General Partner a
number of OP Units equal to the product of (x) the number of Excess Shares
purchased by the General Partner multiplied by (y) a fraction, the numerator of
which is one and the denominator of which is the Exchange Factor in effect on
the date of such purchase.
Section 4.6 No Third Party Beneficiary
No creditor or other third party having dealings with the
Partnership shall have the right to enforce the right or obligation of any
Partner to make Capital Contributions or loans or to pursue any other right or
remedy hereunder or at law or in equity, it being understood and agreed that the
provisions of this Agreement shall be solely for the benefit of, and may be
enforced solely by, the parties hereto and their respective successors and
assigns.
Section 4.7 No Interest; No Return
No Partner shall be entitled to interest on its Capital Contribution
or on such Partner's Capital Account. Except as provided herein or by law, no
Partner shall have any right to demand or receive the return of its Capital
Contribution from the Partnership.
Section 4.8 No Preemptive Rights
Subject to any preemptive rights that may be granted pursuant to
Section 4.3 hereof, no Person shall have any preemptive or other similar right
with respect to (i) additional Capital Contributions or loans to the
Partnership; or (ii) issuance or sale of any OP Units or other Partnership
Interests.
ARTICLE 5
DISTRIBUTIONS
5.1 Regular Distributions
Except for distributions pursuant to Section 13.2 in connection with
the dissolution and liquidation of the Partnership, and subject to the
provisions of Sections 5.3,
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5.4 and 5.5, the General Partner shall cause the Partnership to distribute, from
time to time as determined by the General Partner, but in any event not less
frequently than quarterly, all Available Cash, to the Partners, in accordance
with each Partner's respective Percentage Interest, provided, however, that in
no event may a Partner receive a distribution of Available Cash with respect to
an OP Unit if such Partner is entitled to receive a distribution out of such
Available Cash with respect to a REIT Share for which such OP Unit has been
exchanged.
5.2 Qualification as a REIT
The General Partner shall use its best efforts to cause the
Partnership to distribute sufficient amounts under this Article 5 to enable the
General Partner to pay shareholder dividends that will (i) satisfy the
requirements for qualifying as a REIT under the Code and Regulations ("REIT
Requirements"), and (ii) avoid any federal income or excise tax liability of the
General Partner, provided, however, the General Partner shall not be bound to
comply with this covenant to the extent such distributions would (i) violate
applicable Delaware law or (ii) contravene the terms of any notes, mortgages or
other types of debt obligations which the Partnership may be subject to in
conjunction with borrowed funds.
5.3 Withholding
With respect to any withholding tax or other similar tax liability
or obligation to which the Partnership may be subject as a result of any act or
status of any Partner or to which the Partnership becomes subject with respect
to any OP Unit, the Partnership shall have the right to withhold amounts of
Available Cash distributable to such Partner or with respect to such OP Units,
to the extent of the amount of such withholding tax or other similar tax
liability or obligation pursuant to the provisions contained in Section 10.5.
5.4 Additional Partnership Interests
If the Partnership issues Partnership Interests in accordance with
Section 4.2 or 4.3, the distribution priorities set forth in Section 5.1 shall
be amended, as necessary, to reflect the distribution priority of such
Partnership Interests and corresponding amendments shall be made to the
provisions of Exhibit B.
5.5 Distributions Upon Liquidation
Proceeds from a Terminating Capital Transaction and any other cash
received or reductions in reserves made after commencement of the liquidation of
the Partnership shall be distributed to the Partners in accordance with Section
13.2.
ARTICLE 6
ALLOCATIONS
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The Net Income, Net Loss and other Partnership items shall be
allocated pursuant to the provisions of Exhibit B.
ARTICLE 7
MANAGEMENT AND OPERATIONS OF BUSINESS
Section 7.1 Management
A. Except as otherwise expressly provided in this Agreement,
including, but not limited to Section 13.9, all management powers over the
business and affairs the Partnership are and shall be exclusively vested in the
General Partner, and no Limited Partner shall have any right to participate in
or exercise control or management power over the business and affairs of the
Partnership. The General Partner may not be removed by the Limited Partners with
or without cause. In addition to the powers now or hereafter granted a general
partner of a limited partnership under applicable law or which are granted to
the General Partner under any other provision of this Agreement, the General
Partner shall have full power and authority to do all things deemed necessary or
desirable by it to conduct the business of the Partnership, to exercise all
powers set forth in Section 3.2 hereof and to effectuate the purposes set forth
in Section 3.1 hereof, including, without limitation:
(1) (a) the making of any expenditures, the lending or
borrowing of money, including, without limitation,
making prepayments on loans and borrowing money to
permit the Partnership to make distributions to its
Partners in such amounts as will permit the Company
(so long as the Company qualifies as a REIT) to avoid
the payment of any federal income tax (including, for
this purpose, any excise tax pursuant to Section 4981
of the Code) and to make distributions to its
shareholders in amounts sufficient to permit the
Company to maintain REIT status, (b) the assumption or
guarantee of, or other contracting for, indebtedness
and other liabilities, (c) the issuance of evidence of
indebtedness (including the securing of the same by
deed, mortgage, deed of trust or other lien or
encumbrance on the Partnership's assets) and (d) the
incurring of any obligations it deems necessary for
the conduct of the activities of the Partnership;
(2) the making of tax, regulatory and other filings,
or rendering of periodic or other reports to
governmental or other agencies having jurisdiction
over the business or assets of the Partnership;
(3) the acquisition, disposition, mortgage, pledge,
encumbrance, hypothecation or exchange of any assets
of the Partnership
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(including the exercise or grant of any conversion,
option, privilege, or subscription right or other
right available in connection with any assets at any
time held by the Partnership) or the merger or other
combination of the Partnership with or into another
entity;
(4) the use of the assets of the Partnership
(including, without limitation, cash on hand) for any
purpose consistent with the terms of this Agreement
and on any terms it sees fit, including, without
limitation, the financing of the conduct of the
operations of the Company, the Partnership or any of
the Partnership's Subsidiaries, the lending of funds
to other Persons (including, without limitation, the
Subsidiaries of the Partnership and/or the Company)
and the repayment of obligations of the Partnership
and its Subsidiaries and any other Person in which it
has an equity investment, and the making of capital
contributions to its Subsidiaries;
(5) the management, operation, expansion, development,
construction, leasing, landscaping, repair,
alteration, demolition or improvement of any real
property or improvements owed by the Partnership or
any Subsidiary of the Partnership;
(6) the negotiation, execution, and performance of any
contracts, conveyances or other instruments that the
General Partner considers useful or necessary to the
conduct of the Partnership's operations or the
implementation of the General Partner's powers under
this Agreement, including contracting with
contractors, developers, consultants, accountants,
legal counsel, other professional advisors and other
agents and the payment of their expenses and
compensation out of the Partnership's assets;
(7) the distribution of Partnership cash or other
Partnership assets in accordance with this Agreement;
(8) holding, managing, investing and reinvesting cash
and other assets of the Partnership;
(9) the collection and receipt of revenues and income
of the Partnership;
(10) the establishment of one or more divisions of the
Partnership, the selection and dismissal of employees
of the Partnership (including, without limitation,
employees having titles such as
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"president," "vice president," "secretary" and
"treasurer" of the Partnership), and agents, outside
attorneys, accountants, consultants and contractors of
the Partnership, and the determination of their
compensation and other terms of employment or
engagement;
(11) the maintenance of such insurance for the benefit
of the Partnership and the Partners as it deems
necessary or appropriate;
(12) the formation of, or acquisition of an interest
in, and the contribution of property to, any further
limited or general partnerships, joint ventures or
other relationships that it deems desirable
(including, without limitation, the acquisition of
interests in, and the contributions of property to,
its Subsidiaries and any other Person in which it has
an equity investment from time to time);
(13) the control of any matters affecting the rights
and obligations of the Partnership, including the
settlement, compromise, submission to arbitration or
any other form of dispute resolution, or abandonment
of, any claim, cause of action, liability, debt or
damages, due or owing to or from the Partnership, the
commencement or defense of suits, legal proceedings,
administrative proceedings, arbitration or other forms
of dispute resolution, and the representation of the
Partnership in all suits or legal proceedings,
administrative proceedings, arbitrations or other
forms of dispute resolution, the incurring of legal
expenses, and the indemnification of any Person
against liabilities and contingencies to the extent
permitted by law;
(14) the undertaking of any action in connection with
the Partnership's direct or indirect investment in its
Subsidiaries or any other Person (including, without
limitation, the contribution or loan of funds by the
Partnership to such Persons);
(15) the determination of the fair market value of any
Partnership property distributed in kind using such
reasonable method of valuation as the General Partner
may adopt;
(16) the exercise, directly or indirectly, through any
attorney-in-fact acting under a general or limited
power of attorney, of any right, including the right
to vote, appurtenant to any asset or investment held
by the Partnership;
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(17) the exercise of any of the powers of the General
Partner enumerated in this Agreement on behalf of or
in connection with any Subsidiary of the Partnership
or any other Person in which the Partnership has a
direct or indirect interest, or jointly with any such
Subsidiary or other Person;
(18) the exercise of any of the powers of the General
Partner enumerated in this Agreement on behalf of any
Person in which the Partnership does not have an
interest pursuant to contractual or other arrangements
with such Person;
(19) the making, execution and delivery of any and all
deeds, leases, notes, mortgages, deeds of trust,
security agreements, conveyances, contracts,
guarantees, warranties, indemnities, waivers, releases
or legal instruments or agreements in writing
necessary or appropriate, in the judgment of the
General Partner, for the accomplishment of any of the
foregoing; and
(20) the issuance of additional OP Units, as
appropriate, as contemplated by the Master Agreement
and/or in connection with Capital Contributions by
Additional Limited Partners and additional Capital
Contributions by Partners pursuant to Article 4
hereof; and
(21) The opening of bank accounts on behalf of, and in
the name of, the Partnership and its Subsidiaries.
B. Each of the Limited Partners agrees that the General Partner is
authorized to execute, deliver and perform the above-mentioned agreements and
transactions on behalf of the Partnership without any further act, approval or
vote of the Partners, notwithstanding any other provision of this Agreement to
the fullest extent permitted under the Act or other applicable law, rule or
regulation. The execution, delivery or performance by the General Partner or the
Partnership of any agreement authorized or permitted under this Agreement shall
not constitute a breach by the General Partner of any duty that the General
Partner may owe the Partnership or the Limited Partners or any other Persons
under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner
may cause the Partnership to establish and maintain at any and all times working
capital accounts and other cash or similar balances in such amount as the
General Partner, in its sole and absolute discretion, deems appropriate and
reasonable from time to time.
D. In exercising its authority under this Agreement, the General
Partner may, but shall be under no obligation to, take into account the tax
consequences to any
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Partner of any action taken by it; provided, that if the General Partner decides
to refinance (directly or indirectly) any outstanding indebtedness of the
Partnership, the General Partner shall use reasonable efforts to structure such
refinancing in a manner that minimizes any adverse tax consequences resulting
therefrom to the Limited Partners. The General Partner and the Partnership shall
not have liability to a Limited Partner under any circumstances as a result of
an income tax liability incurred by such Limited Partner as a result of an
action (or inaction) by the General Partner taken pursuant to its authority
under and in accordance with this Agreement.
Section 7.2 Certificate of Limited Partnership
The General Partner has filed the Certificate with the Secretary of
State of Delaware as required by the Act. The General Partner shall use all
reasonable efforts to cause to be filed such other certificates or documents as
may be reasonable and necessary or appropriate for the formation, continuation,
qualification and operation of a limited partnership (or a partnership in which
the limited partners have limited liability) in the State of Delaware and any
other state, or the District of Columbia, in which the Partnership may elect to
do business or own property. To the extent that such action is determined by the
General Partner to be reasonable and necessary or appropriate, the General
Partner shall file amendments to and restatements of the Certificate and do all
of the things to maintain the Partnership as a limited partnership (or a
partnership in which the limited partners have limited liability) under the laws
of the State of Delaware and each other state, or the District of Columbia, in
which the Partnership may elect to do business or own property. Subject to the
terms of Section 8.5A(4) hereof, the General Partner shall not be required,
before or after filing, to deliver or mail a copy of the Certificate or any
amendment thereto to any Limited Partner.
Section 7.3 Reimbursement of the General Partner and the Company
A. Except as provided in this Section 7.3 and elsewhere in this
Agreement (including the provisions of Articles 5 and 6 regarding distributions,
payments, and allocations to which it may be entitled), the General Partner
shall not be compensated for its services as general partner of the Partnership.
B. The General Partner, shall be reimbursed on a monthly basis, or
such other basis as it may determine in its sole and absolute discretion, for
all expenses that it incurs relating to the ownership and operation of, or for
the benefit of, the Partnership; provided, that the amount of any such
reimbursement shall be reduced by any interest earned by the General Partner
with respect to bank accounts or other instruments or accounts held by it in its
name. Such reimbursement shall be in addition to any reimbursement made as a
result of indemnification pursuant to Section 7.6 hereof.
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Section 7.4 Outside Activities of the General Partner
The General Partner shall not directly or indirectly enter into or
conduct any business other than in connection with the ownership, acquisition,
development and disposition of Partnership Interests and the management of the
business of the Partnership, and such activities as are incidental thereto. The
General Partner and any Affiliates of the General Partner may acquire Limited
Partner Interests and shall be entitled to exercise all rights of a Limited
Partner relating to such Limited Partner Interests.
Section 7.5 Contracts with Affiliates
A. The Partnership may lend or contribute funds or other assets to
its Subsidiaries or other Persons in which it has an equity investment and such
Persons may borrow funds from the Partnership, on terms and conditions
established in the sole and absolute discretion of the General Partner. The
foregoing authority shall not create any right or benefit in favor of any
Subsidiary or any other Person.
B. Except as provided in Section 7.4, the Partnership may Transfer
assets to joint ventures, other partnerships, corporations or other business
entities in which it is or thereby becomes a participant upon such terms and
subject to such conditions consistent with this Agreement and applicable law as
the General Partner, in its sole and absolute discretion, believes are
advisable.
C. Except as expressly permitted by this Agreement or otherwise
contemplated by the Master Agreement, neither the General Partner nor any of its
Affiliates shall sell, Transfer or convey any property to, or purchase any
property from, the Partnership, directly or indirectly, except pursuant to
transactions that are determined by the General Partner in good faith to be fair
and reasonable.
D. The General Partner, in its sole and absolute discretion and
without the approval of the Limited Partners, may propose and adopt, on behalf
of the Partnership, employee benefit plans, stock option plans, and similar
plans funded by the Partnership for the benefit of employees of the General
Partner, the Partnership, Subsidiaries of the Partnership or any Affiliate of
any of them in respect of services performed, directly or indirectly, for the
benefit of the Partnership, the General Partner, or any Subsidiaries of the
Partnership.
E. The General Partner is expressly authorized to enter into, in
the name and on behalf of the Partnership, a "right of first opportunity" or
"right of first offer" arrangement, non-competition agreements and other
conflict avoidance agreements with various Affiliates of the Partnership and the
General Partner, on such terms as the General Partner, in its sole and absolute
discretion, believes are advisable.
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Section 7.6 Indemnification
A. To the fullest extent permitted by Delaware law, the Partnership
shall indemnify each Indemnitee from and against any and all losses, claims,
damages, liabilities, joint or several, expenses (including, without limitation,
reasonable attorneys' fees and other legal fees and expenses), judgments, fines,
settlements, and other amounts arising from any and all claims, demands,
actions, suits or proceedings, civil, criminal, administrative or investigative,
that relate to the operations of the Partnership or the Company as set forth in
this Agreement, in which such Indemnitee may be involved, or is threatened to be
involved, as a party or otherwise, except to the extent it is finally determined
by a court of competent jurisdiction, from which no further appeal may be taken,
that such Indemnitee's action constituted intentional acts or omissions
constituting willful misconduct or fraud. Without limitation, the foregoing
indemnity shall extend to any liability of any Indemnitee, pursuant to a loan
guaranty or otherwise for any indebtedness of the Partnership or any Subsidiary
of the Partnership (including, without limitation, any indebtedness which the
Partnership or any Subsidiary of the Partnership has assumed or taken subject
to), and the General Partner is hereby authorized and empowered, on behalf of
the Partnership, to enter into one or more indemnity agreements consistent with
the provisions of this Section 7.6 in favor of any Indemnitee having or
potentially having liability for any such indebtedness. Any indemnification
pursuant to this Section 7.6 shall be made only out of the assets of the
Partnership, and neither the General Partner nor any Limited Partner shall have
any obligation to contribute to the capital of the Partnership, or otherwise
provide funds, to enable the Partnership to fund its obligations under this
Section 7.6.
B. Reasonable expenses incurred by an Indemnitee who is a party to
a proceeding shall be paid or reimbursed by the Partnership in advance of the
final disposition of the proceeding.
C. The indemnification provided by this Section 7.6 shall be in
addition to any other rights to which an Indemnitee or any other Person may be
entitled under any agreement, pursuant to any vote of the Partners, as a matter
of law or otherwise, and shall continue as to an Indemnitee who has ceased to
serve in such capacity unless otherwise provided in a written agreement pursuant
to which such Indemnities are indemnified.
D. The Partnership may, but shall not be obligated to, purchase and
maintain insurance, on behalf of the Indemnities and such other Persons as the
General Partner shall determine, against any liability that may be asserted
against or expenses that may be incurred by such Person in connection with the
Partnership's activities, regardless of whether the Partnership would have the
power to indemnify such Person against such liability under the provisions of
this Agreement.
E. For purposes of this Section 7.6, the Partnership shall be
deemed to have requested an Indemnitee to serve as fiduciary of an employee
benefit plan whenever the performance by such Indemnitee of its duties to the
Partnership also imposes duties on, or
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otherwise involves services by, such Indemnitee to the plan or participants or
beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect
to an employee benefit plan pursuant to applicable law shall constitute fines
within the meaning of this Section 7.6; and actions taken or omitted by the
Indemnitee with respect to an employee benefit plan in the performance of its
duties for a purpose reasonably believed by it to be in the interest of the
participant and beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the Partnership.
F. In no event may an Indemnitee subject any of the Partners to
personal liability by reason of the indemnification provisions set forth in this
Agreement.
G. An Indemnitee shall not be denied indemnification in whole or in
part under this Section 7.6 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the transaction
was otherwise permitted by the terms of this Agreement.
H. The provisions of this Section 7.6 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and shall not
be deemed to create any rights for the benefit of any other Persons. Any
amendment, modification or repeal of this Section 7.6 or any provision hereof
shall be prospective only and shall not in any way affect the Partnership's
liability to any Indemnitee under this Section 7.6, as in effect immediately
prior to such amendment, modification, or repeal with respect to claims arising
from or relating to matters occurring, in whole or in part, prior to such
amendment, modification or repeal, regardless of when such claims may arise or
be asserted.
Section 7.7 Liability of the General Partner
A. Notwithstanding anything to the contrary set forth in this
Agreement, the General Partner and its officers and directors shall not be
liable for monetary damages to the Partnership, any Partners or any Assignees
for losses sustained or liabilities incurred as a result of errors in judgment
or of any act or omission if the General Partner acted in good faith; provided,
however, the foregoing shall not be deemed to exculpate the General Partner from
any liability the General Partner may have under any RPS Contribution Agreement
or the Master Agreement.
B. The Limited Partners expressly acknowledge that the General
Partner is acting on behalf of the Partnership and the shareholders of the
Company collectively, that the General Partner, subject to the provisions of
Section 7.1D hereof, is under no obligation to consider the separate interest of
the Limited Partners in deciding whether to cause the Partnership to take (or
decline to take) any actions, and that the General Partner shall not be liable
for monetary damages for losses sustained, liabilities incurred, or benefits not
derived by Limited Partners in connection with such decisions, provided that the
General Partner has acted in good faith. With respect to any indebtedness of the
Partnership which any Limited
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Partner may have guaranteed, the General Partner shall have no duty to keep such
indebtedness outstanding.
C. Subject to its obligations and duties as General Partner set
forth in Section 7.1A hereof, the General Partner may exercise any of the powers
granted to it by this Agreement and perform any of the duties imposed upon it
hereunder either directly or by or through its agent. The General Partner shall
not be responsible for any misconduct or negligence on the part of any such
agent appointed by the General Partner in good faith.
D. Any amendment, modification or repeal of this Section 7.7 or any
provision hereof shall be prospective only and shall not in any way affect the
limitations on the General Partner's and its officers' and directors' liability
to the Partnership and the Limited Partners under this Section 7.7 as in effect
immediately prior to such amendment, modification or repeal with respect to
claims arising from or relating to matters occurring, in whole or in part, prior
to such amendment, modification or repeal, regardless of when such claims may
arise or be asserted.
Section 7.8 Limited Partners' Right to Bring Derivative Lawsuits
A. Any Limited Partner may bring an action on behalf of the
Partnership, as permitted under the Act and the laws of the State of Delaware,
to recover a judgment in favor of the Partnership if the Company has refused to
bring the action or if an effort to cause the Company to bring the action is not
likely to succeed.
Section 7.9 Other Matters Concerning the General Partner
A. The General Partner may rely and shall be protected in acting,
or refraining from acting, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, debenture,
or other paper or document believed by it in good faith to be genuine and to
have been signed or presented by the proper party or parties.
B. The General Partner may consult with legal counsel, accountants,
appraisers, management consultants, investment bankers, architects, engineers,
environmental consultants and other consultants and advisers selected by it, and
any act taken or omitted to be taken in reliance upon the opinion of such
Persons as to matters which such General Partner reasonably believes to be
within such Person's professional or expert competence shall be conclusively
presumed to have been done or omitted in good faith and in accordance with such
opinion.
C. The General Partner shall have the right, in respect of any of
its powers or obligations hereunder, to act through any of its duly authorized
officers and duly appointed attorneys-in-fact. Each such attorney shall, to the
extent provided by the General Partner in the power of attorney, have full power
and authority to do and perform all and every act and duty which is permitted or
required to be done by the General Partner hereunder.
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D. Notwithstanding any other provisions of this Agreement or the
Act, any action of the General Partner on behalf of the Partnership or any
decision of the General Partner to refrain from acting on behalf of the
Partnership, undertaken in the good faith belief that such action or omission is
necessary or advisable in order (i) to protect the ability of the Company to
continue to qualify as a REIT; or (ii) to avoid the Company incurring any taxes
under Section 857 or Section 4981 of the Code, is expressly authorized under
this Agreement and is deemed approved by all of the Limited Partners.
Section 7.10 Title to Partnership Assets
Title to Partnership assets, whether real, personal or mixed and
whether tangible or intangible, shall be deemed to be owned by the Partnership
as an entity, and no Partner, individually or collectively, shall have any
ownership interest in such Partnership assets or any portion thereof. Title to
any or all of the Partnership assets may be held in the name of the Partnership,
the General Partner or one or more nominees, as the General Partner may
determine, including Affiliates of the General Partner. The General Partner
hereby declares and warrants that any Partnership asset for which legal title is
held in the name of the General Partner or any nominee or Affiliate of the
General Partner shall be held by the General Partner for the use and benefit of
the Partnership in accordance with the provisions of this Agreement; provided,
that the General Partner shall use its best efforts to cause beneficial and
record title to such assets to be vested in the Partnership as soon as
reasonably practicable. All Partnership assets shall be recorded as the property
of the Partnership in its books and records, irrespective of the name in which
legal title to such Partnership assets is held.
Section 7.11 Reliance by Third Parties
Notwithstanding anything to the contrary in this Agreement, any
Person dealing with the Partnership shall be entitled to assume that the General
Partner has full power and authority, without consent or approval of any other
Partner or Person, to encumber, sell or otherwise use in any manner any and all
assets of the Partnership and to enter into any contracts on behalf of the
Partnership, and take any and all actions on behalf of the Partnership, and such
Person shall be entitled to deal with the General Partner as if the General
Partner were the Partnership's sole party in interest, both legally and
beneficially. Each Limited Partner hereby waives any and all defenses or other
remedies which may be available against such Person to contest, negate or
disaffirm any action of the General Partner in connection with any such dealing.
In no event shall any Person dealing with the General Partner or its
representatives be obligated to ascertain that the terms of this Agreement have
been complied with or to inquire into the necessity or expedience of any act or
action of the General Partner or its representatives. Each and every
certificate, document or other instrument executed on behalf of the Partnership
by the General Partner or its representatives shall be conclusive evidence in
favor of any and every Person relying thereon or claiming thereunder that (i) at
the time of the execution and delivery of such certificate, document or
instrument, this Agreement was in full force and effect; (ii) the Person
executing
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and delivering such certificate, document or instrument was duly authorized and
empowered to do so for and on behalf of the Partnership; and (iii) such
certificate, document or instrument was duly executed and delivered in
accordance with the terms and provisions of this Agreement and is binding upon
the Partnership.
ARTICLE 8
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
Section 8.1 Limitation of Liability
The Limited Partners shall have no liability under this Agreement
except as expressly provided in this Agreement, including Section 10.5 hereof,
or under the Act. Notwithstanding the preceding sentence, each Limited Partner
shall have the right, but not the obligation, to guarantee a portion of
indebtedness of the Partnership.
Section 8.2 Management of Business
No Limited Partner or Assignee (other than the General Partner, any
of its Affiliates or any officer, director, employee, agent or trustee of the
General Partner, the Partnership or any of their Affiliates, in their capacity
as such) shall take part in the operation, management or control (within the
meaning of the Act) of the Partnership's business, transact any business in the
Partnership's name or have the power to sign documents for or otherwise bind the
Partnership. The transaction of any such business by the General Partner, any of
its Affiliates or any officer, director, employee, partner, agent or trustee of
the General Partner, the Partnership or any of their Affiliates, in their
capacity as such, shall not affect, impair or eliminate the limitations on the
liability of the Limited Partners or Assignees under this Agreement.
Section 8.3 Outside Activities of Limited Partners
Subject to any agreements entered into pursuant to Section 7.5
hereof and any other agreements entered into by a Limited Partner or its
Affiliates with the Partnership or any of its Subsidiaries, any Limited Partner
(other than the Company) and any officer, director, employee, agent, trustee,
Affiliate or shareholder of any Limited Partner (other than the Company) shall
be entitled to and may have business interests and engage in business activities
in addition to those relating to the Partnership, including business interests
and activities that are in direct competition with the Partnership or that are
enhanced by the activities of the Partnership. Neither the Partnership nor any
Partners shall have any rights by virtue of this Agreement in any business
ventures of any Limited Partner or Assignee. None of the Limited Partners (other
than the Company) nor any other Person shall have any rights by virtue of this
Agreement or the Partnership relationship established hereby in any business
ventures of any other Person and such Person shall have no obligation pursuant
to this Agreement to offer any interest in any such business ventures to the
Partnership, any Limited
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Partner or any such other Person, even if such opportunity is of a character
which, if presented to the Partnership, any Limited Partner or such other
Person, could be taken by such Person.
Section 8.4 Return of Capital
Except pursuant to the Exchange Rights Agreement, no Limited Partner
shall be entitled to the withdrawal or return of its Capital Contribution,
except to the extent of distributions made pursuant to this Agreement or upon
termination of the Partnership as provided herein. Except to the extent provided
by Exhibit B, or as otherwise expressly provided in this Agreement, no Limited
Partner or Assignee shall have priority over any other Limited Partner or
Assignee, either as to the return of Capital Contributions or as to profits,
losses or distributions.
Section 8.5 Rights of Limited Partners Relating to the Partnership
A. In addition to the other rights provided by this Agreement or by
the Act, and except as limited by Section 8.5B hereof, each Limited Partner
shall have the right, for a purpose reasonably related to such Limited Partner'
s interest as a limited partner in the Partnership, upon written demand with a
statement of the purpose of such demand and at such Limited Partner' s own
expense (including such reasonable copying and administrative charges as the
General Partner may establish from time to time):
(1) to obtain a copy of the most recent annual and
quarterly reports filed with the Securities and
Exchange Commission by the Company pursuant to the
Securities Exchange Act of 1934;
(2) to obtain a copy of the Partnership's federal,
state and local income tax returns for each
Partnership Year;
(3) to obtain a current list of the name and last
known business, residence or mailing address of each
Partner;
(4) to obtain a copy of this Agreement and the
Certificate and all amendments and/or restatements
thereto, together with executed copies of all powers
of attorney pursuant to which this Agreement, the
Certificate and all amendments and/or restatements
thereto have been executed; and
(5) to obtain true and full information regarding the
amount of cash and a description and statement of any
other property or services contributed by each Partner
and which each Partner has agreed to contribute in the
future, and the date on which each became a Partner.
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B. Notwithstanding any other provision of this Section 8.5, the
General Partner may keep confidential from the Limited Partners, for such period
of time as the General Partner determines in its sole and absolute discretion to
be reasonable, any information that (i) the General Partner reasonably believes
to be in the nature of trade secrets or other information, the disclosure of
which the General Partner in good faith believes is not in the best interests of
the Partnership or could damage the Partnership or its business; or (ii) the
Partnership is required by law or by agreements with an unaffiliated third party
to keep confidential.
Section 8.6 Exchange Rights Agreement
The Limited Partners have been granted the right, but not the
obligation, to exchange all or a portion of their OP Units for REIT Shares on
the terms and subject to the conditions and restrictions contained in that
certain Exchange Rights Agreement among the General Partner and the Limited
Partners (as amended from time to time, the "Exchange Rights Agreement"), the
form of which is attached hereto as Exhibit C.
ARTICLE 9
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Records and Accounting
The General Partner shall keep or cause to be kept at the principal
office of the Partnership those records and documents required to be maintained
by the Act and other books and records deemed by the General Partner to be
appropriate with respect to the Partnership's business, including, without
limitation, all books and records necessary to comply with applicable REIT
Requirements and to provide to the Limited Partners any information, lists and
copies of documents required to be provided pursuant to Sections 8.5A and 9.3
hereof. Any records maintained by or on behalf of the Partnership in the regular
course of its business may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, micrographics or any other information storage
device, provided that the records so maintained are convertible into clearly
legible written form within a reasonable period of time. The books of the
Partnership shall be maintained, for financial and tax reporting purposes, on an
accrual basis in accordance with generally accepted accounting principles, or
such other basis as the General Partner determines to be necessary or
appropriate.
Section 9.2 Fiscal Year
The fiscal year of the Partnership shall be the calendar year.
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Section 9.3 Reports
A. As soon as practicable, but in no event later than one hundred
five (105) days after the close of each Partnership Year, the General Partner
shall cause to be mailed to each Limited Partner as of the close of the
Partnership Year, an annual report containing financial statements of the
Partnership, or of the Company if such statements are prepared solely on a
consolidated basis with the Company, for such Partnership Year, presented in
accordance with GAAP, such statements to be audited by a nationally recognized
firm of independent public accountant selected by the General Partner in its
sole discretion.
B. As soon as practicable, but in no event later than one hundred
five (105) days after the close of each calendar quarter (except the last
calendar quarter of each calendar year), the General Partner shall cause to be
mailed to each Limited Partner a report containing unaudited financial
statements as of the last day of the calendar quarter of the Partnership, or of
the Company, if such statements are prepared solely on a consolidated basis with
the Company, and such other information as may be required by applicable law or
regulation, or as the General Partner determines to be appropriate.
ARTICLE 10
TAX MATTERS
Section 10.1 Preparation of Tax Returns
The General Partner shall arrange for the preparation and timely
filing of all returns of Partnership income, gains, deductions, losses and other
items required of the Partnership for federal and state income tax purposes and
shall use all reasonable efforts to furnish, within ninety (90) days of the
close of each taxable year, the tax information reasonably required by Limited
Partners for federal and state income tax reporting purposes.
Section 10.2 Tax Elections
Except as otherwise provided herein, the General Partner shall, in
its sole and absolute discretion, determine whether to make any available
election pursuant to the Code. Notwithstanding the above, in making any such tax
election the General Partner shall take into account the tax consequences to the
Limited Partners resulting from any such election. The General Partner shall
make such tax elections on behalf of the Partnership as the Limited Partners
holding a majority of the Percentage Interests of the Limited Partners
(excluding Limited Partner Interests held by the Company) request, provided that
the General Partner believes that such election is not adverse to the interests
of the General Partner, including its interest in preserving its qualification
as a REIT under the Code. The General Partner shall elect the "traditional
method" of making Section 704(c) allocations pursuant to Regulations Section
1.704-3 with respect to property contributed pursuant to the Master Agreement.
The General Partner shall have the right to seek to revoke any tax election it
makes (other than the
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election to use the traditional method of making the Section 704(c) allocations
described in this Section 10.2), including, without limitation, the election
under Section 754 of the Code, upon the General Partner' s determination, in its
sole and absolute discretion, that such revocation is in the best interests of
the Partners.
Section 10.3 Tax Matters Partner
A. The General Partner shall be the "tax matters partner" of the
Partnership for federal income tax purposes. Pursuant to Section 6230(e) of the
Code, upon receipt of notice from the Internal Revenue Service of the beginning
of an administrative proceeding with respect to the Partnership, the tax matters
partner shall furnish the Internal Revenue Service with the name, address,
taxpayer identification number, and profit interest of each of the Limited
Partners and the Assignees; provided, that such information is provided to the
Partnership by the Limited Partners and the Assignees.
B. The tax matters partner is authorized, but not required:
(1) to enter into any settlement with the Internal
Revenue Service with respect to any administrative or
judicial proceedings for the adjustment of Partnership
items required to be taken into account by a Partner
for income tax purposes (such administrative
proceedings being referred to as a "tax audit" and
such judicial proceedings being referred to as
"judicial review"), and in the settlement agreement
the tax matters partner may expressly state that such
agreement shall bind all Partners, except that such
settlement agreement shall not bind any Partner (i)
who (within the time prescribed pursuant to the Code
and Regulations) files a statement with the Internal
Revenue Service providing that the tax matters partner
shall not have the authority to enter into a
settlement agreement on behalf of such Partner; or
(ii) who is a "notice partner" (as defined in Section
6231(a)(8) of the Code) or a member of a "notice
group" (as defined in Section 6223(b)(2) of the Code);
(2) in the event that a notice of a final
administrative adjustment at the Partnership level of
any item required to be taken into account by a
Partner for tax purposes (a "final adjustment") is
mailed to the tax matters partner, to seek judicial
review of such final adjustment, including the filing
of a petition for readjustment with the Tax Court or
the filing of a complaint for refund with the United
States Claims Court or the District Court of the
United States for the district in which the
Partnership's principal place of business is located;
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(3) to intervene in any action brought by any other
Partner for judicial review of a final adjustment;
(4) to file a request for an administrative adjustment
with the Internal Revenue Service and, if any part of
such request is not allowed by the Internal Revenue
Service, to file an appropriate pleading (petition or
complaint) for judicial review with respect to such
request;
(5) to enter into an agreement with the Internal
Revenue Service to extend the period for assessing any
tax which is attributable to any item required to be
taken account of by a Partner for tax purposes, or an
item affected by such item; and
(6) to take any other action on behalf of the Partners
or the Partnership in connection with any tax audit or
judicial review proceeding to the extent permitted by
applicable law or regulations.
The taking of any action and the incurring of any expense by the tax
matters partner in connection with any such proceeding, except to the extent
required by law, is a matter in the sole and absolute discretion of the tax
matters partner and the provisions relating to indemnification of the General
Partner set forth in Section 7.6 of this Agreement shall be fully applicable to
the tax matters partner in its capacity as such.
C. The tax matters partner shall receive no compensation for its
services. All third party costs and expenses incurred by the tax matters partner
in performing its duties as such (including legal and accounting fees and
expenses) shall be borne by the Partnership. Nothing herein shall be construed
to restrict the Partnership from engaging an accounting firm to assist the tax
matters partner in discharging its duties hereunder, so long as the compensation
paid by the Partnership for such services is reasonable.
Section 10.4 Organizational Expenses
The Partnership shall elect to deduct expenses, if any, incurred by
it in organizing the Partnership ratably over a sixty (60) month period as
provided in Section 709 of the Code.
Section 10.5 Withholding
Each Limited Partner hereby authorizes the Partnership to withhold
from, or pay on behalf of or with respect to, such Limited Partner any amount of
federal, state, local, or foreign taxes that the General Partner determines that
the Partnership is required to withhold or pay with respect to any amount
distributable or allocable to such Limited Partner
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pursuant to this Agreement, including, without limitation, any taxes required to
be withheld or paid by the Partnership pursuant to Sections 1441, 1442, 1445, or
1446 of the Code. Any amount paid on behalf of or with respect to a Limited
Partner shall constitute a loan by the Partnership to such Limited Partner,
which loan shall be repaid by such Limited Partner within fifteen (15) days
after notice from the General Partner that such payment must be made unless (i)
the Partnership withholds such payment from a distribution which would otherwise
be made to the Limited Partner; or (ii) the General Partner determines, in its
sole and absolute discretion, that such payment may be satisfied out of the
available funds of the Partnership which would, but for such payment, be
distributed to the Limited Partner. Any amounts withheld pursuant to the
foregoing clauses (i) or (ii) shall be treated as having been distributed to
such Limited Partner. Each Limited Partner hereby unconditionally and
irrevocably grants to the Partnership a security interest in such Limited
Partner' s Partnership Interest to secure such Limited Partner's obligation to
pay to the Partnership any amounts required to be paid pursuant to this Section
10.5. In the event that a Limited Partner fails to pay when due any amounts owed
to the Partnership pursuant to this Section 10.5, the General Partner may, in
its sole and absolute discretion, elect to make the payment to the Partnership
on behalf of such defaulting Limited Partner, and in such event shall be deemed
to have loaned such amount to such defaulting Limited Partner and shall succeed
to all rights and remedies of the Partnership as against such defaulting Limited
Partner. Without limitation, in such event, the General Partner shall have the
right to receive distributions that would otherwise be distributable to such
defaulting Limited Partner until such time as such loan, together with all
interest thereon, has been paid in full, and any such distributions so received
by the General Partner shall be treated as having been distributed to the
defaulting Limited Partner and immediately paid by the defaulting Limited
Partner to the General Partner in repayment of such loan. Any amount payable by
a Limited Partner hereunder shall bear interest at the highest base or prime
rate of interest published from time to time by any of Citibank, N.A., Chemical
Bank, Morgan Guaranty Trust Company of New York and Chase Manhattan Bank, N.A.,
plus four (4) percentage points, but in no event higher than the maximum lawful
rate of interest on such obligation, such interest to accrue from the date such
amount is due (i.e., fifteen (15) days after demand) until such amount is paid
in full. Each Limited Partner shall take such actions as the Partnership or the
General Partner shall request in order to perfect or enforce the security
interest created hereunder.
ARTICLE 11
TRANSFERS AND WITHDRAWALS
Section 11.1 Transfer
A. The term "Transfer," when used in this Article 11 with respect
to an OP Unit, shall be deemed to refer to a transaction by which the General
Partner purports to assign all or any part of its General Partner Interest to
another Person or by which a Limited Partner purports to assign all or any part
of its Limited Partner Interest to another Person. The term
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"Transfer" when used in this Article 11 does not include any exchange of OP
Units for REIT Shares pursuant to the Exchange Rights Agreement.
B. No Partnership Interest shall be Transferred, in whole or in
part, except in accordance with the terms and conditions set forth in this
Article 11. Any Transfer or purported Transfer of a Partnership Interest not
made in accordance with this Article 11 shall be null and void.
Section 11.2 Transfer of the Company's General Partner Interest and
Limited Partner Interest
A. The Company may not Transfer any of its General Partner Interest
or withdraw as General Partner, or Transfer any of its Limited Partner Interest,
unless Limited Partners holding a majority of the Percentage Interests of the
Limited Partners (other than Limited Partner Interests held by the Company)
consent to such Transfer or withdrawal or such Transfer is to an entity which is
wholly-owned by the Company and is a Qualified REIT Subsidiary under Section
856(i) of the Code.
B. In the event the Company withdraws as General Partner in
accordance with clause (A) above, the Company's General Partner Interest shall
immediately be converted into a Limited Partner Interest.
Section 11.3 Limited Partners' Rights to Transfer
A. (1) Subject to the provisions of Sections 11.3C, 11.3D and 11.4
and the restrictions included in the Lock-up Agreement, a Limited Partner (other
than the Company) may, without the consent of the General Partner:
(a) if such Limited Partner is a partnership, Transfer
such Limited Partner's OP Units to any partner of
such Limited Partner;
(b) Transfer such Limited Partner's OP Units to any
other Limited Partner; and
(c) pledge such Limited Partner's OP Units to any
financial institution as collateral for any loan with
respect to which such Limited Partner is personally
liable.
(2) Subject to the provisions of Sections 11.3C, 11.3D and
11.4, a Limited Partner may Transfer any of such Limited Partner's OP Units,
other than in accordance with clause (1) above, only with the prior written
consent of the General Partner.
B. If a Limited Partner is subject to Incapacity, the executor,
administrator, trustee, committee, guardian, conservator or receiver of such
Limited Partner's estate shall
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have all of the rights of a Limited Partner, but not more rights than those
enjoyed by other Limited Partners, for the purpose of settling or managing the
estate and such power as the Incapacitated Limited Partner possessed to Transfer
all or any part of his or its interest in the Partnership. The Incapacity of a
Limited Partner, in and of itself, shall not dissolve or terminate the
Partnership.
C. The General Partner may prohibit any Transfer by a Limited
Partner of its OP Units if, in the opinion of legal counsel to the Partnership,
such Transfer would require filing of a registration statement under the
Securities Act of 1933, as amended, or would otherwise violate any federal or
state securities laws or regulations applicable to the Partnership or the OP
Units.
D. No Transfer by a Limited Partner of its OP Units may be made to
any Person if (i) in the opinion of legal counsel for the Partnership, it would
result in the Partnership being treated as an association taxable as a
corporation; (ii) such Transfer would cause the Partnership to become, with
respect to any employee benefit plan subject to Title I of ERISA, a
"party-in-interest" (as defined in Section 3(14) of ERISA) or a "disqualified
person" (as defined in Section 4975(c) of the Code); (iii) such Transfer would,
in the opinion of legal counsel for the Partnership, cause any portion of the
assets of the Partnership to constitute assets of any employee benefit plan
pursuant to Department of Labor Regulations Section 2510.2-101; (iv) such
Transfer would subject the Partnership to be regulated under the Investment
Company Act of 1940, the Investment Advisors Act of 1940 or the Employee
Retirement Income Security Act of 1974, each as amended; or (v) such Transfer is
a sale or exchange, and such sale or exchange would, when aggregated with all
other sales and exchanges during the 12-month period ending on the date of the
proposed Transfer, result in 50% or more of the interests in Partnership capital
and profits being sold or exchanged.
Section 11.4 Substituted Limited Partners
A. Subject to clause D. below, each Limited Partner shall have the
right to substitute a Permitted Transferee which receives OP Units pursuant to
Section 11.3A(1) as a Limited Partner in his place.
B. The General Partner shall have the right to consent to the
admission of a transferee who receives OP Units pursuant to Section 11.3A(2),
which consent may be given or withheld by the General Partner in its sole and
absolute discretion. The General Partner's failure or refusal to permit such
transferee to become a Substituted Limited Partner shall not give rise to any
cause of action against the Partnership or any Partner.
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C. A transferee who has been admitted as a Substituted Limited
Partner in accordance with this Article 11 shall have all the rights and powers
and be subject to all the restrictions and liabilities of a Limited Partner
under this Agreement.
D. No Permitted Transferee will be admitted as a Substituted
Limited Partner unless (i) such transferee has furnished to the General Partner
(a) evidence of acceptance in form satisfactory to the General Partner of all
of the terms and conditions of this Agreement and the Exchange Rights Agreement,
including, without limitation, the power of attorney granted in Section 2.4
hereof and (b) such other documents or instruments as may be required in the
reasonable discretion of the General Partner in order to effect such Person's
admission as a Substituted Limited Partner and (ii) in the case of a transferee
who receives OP Units in accordance with Section 11.3A(2), the General Partner
has consented to such admission in accordance with Section 11.4B. Upon the
admission of a Substituted Limited Partner, the General Partner shall amend
Exhibit A to reflect the name, address, number of OP Units, and Percentage
Interest of such Substituted Limited Partner and to eliminate or adjust, if
necessary, the name, address and interest of the predecessor of such Substituted
Limited Partner.
Section 11.5 Assignees
If the General Partner, in its sole and absolute discretion, does
not consent to the admission of any transferee as a Substituted Limited Partner,
as described in Section 11.4B, such transferee shall be considered an Assignee
for purposes of this Agreement. An Assignee shall be deemed to have had assigned
to it, and shall be entitled to receive distributions from the Partnership and
the share of Net Income, Net Losses and any other items, gain, loss deduction
and credit of the Partnership attributable to the OP Units assigned to such
transferee, but shall not be deemed to be a holder of OP Units for any other
purpose under this Agreement, and shall not be entitled to vote such OP Units in
any matter presented to the Limited Partners for a vote (such OP Units being
deemed to have been voted on such matter in the same proportion as all other OP
Units held by Limited Partners are voted). In the event any such transferee
desires to make a further assignment of any such OP Units, such transferee shall
be subject to all of the provisions of this Article 11 to the same extent and in
the same manner as any Limited Partner desiring to make an assignment of OP
Units.
Section 11.6 General Provisions
A. No Limited Partner may withdraw from the Partnership other than
as a result of a permitted Transfer of all of such Limited Partner' s OP Units
in accordance with this Article 11 or pursuant to exchange of all of its OP
Units pursuant to the Exchange Rights Agreement.
B. Any Limited Partner who shall Transfer all of its OP Units in a
Transfer permitted pursuant to this Article 11 shall cease to be a Limited
Partner upon the admission of
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all Assignees of such OP Units as Substituted Limited Partners. Similarly, any
Limited Partner who shall Transfer all of its OP Units pursuant to an exchange
of all of its OP Units pursuant to the Exchange Rights Agreement shall cease to
be a Limited Partner.
C. Without the consent of the General Partner, transfers pursuant
to this Article 11 may only be made as of the first day of a fiscal quarter of
the Partnership.
D. If any Partnership Interest is transferred or assigned during
the Partnership's fiscal year in compliance with the provisions of this Article
11 or exchanged pursuant to the Exchange Rights Agreement on any day other than
the first day of a Partnership Year, then Net Income, Net Losses, each item
thereof and all other items attributable to such interest for such Partnership
Year shall be divided and allocated between the transferor Partner and the
transferee Partner by taking into account their varying interests during the
Partnership Year in accordance with Section 706(d) of the Code, using the
interim closing of the books method. Solely for purposes of making such
allocations, each of such items for the calendar month in which the Transfer or
assignment occurs shall be allocated to the transferee Partner, and none of
such items for the calendar month in which an exchange occurs shall be
allocated to the exchanging Partner, provided, however, that the General
Partner may adopt such other conventions relating to allocations in connection
with transfers, assignments, or exchanges as it determines are necessary or
appropriate. All distributions of Available Cash attributable to such OP Units
with respect to which the Partnership Record Date is before the date of such
transfer, assignment, or exchange shall be made to the transferor Partner or
the exchanging Partner, as the case may be, and in the case of a Transfer or
assignment other than an exchange, all distributions of Available Cash
thereafter attributable to such OP Units shall be made to the transferee
Partner.
ARTICLE 12
ADMISSION OF PARTNERS
Section 12.1 Admission of Successor General Partner
A successor to all of the General Partner Interest pursuant to
Section 11 hereof who is proposed to be admitted as a successor General Partner
shall be admitted to the Partnership as the General Partner, effective upon such
transfer. Any such transferee shall carry on the business of the Partnership
without dissolution. In each case, the admission shall be subject to the
successor General Partner executing and delivering to the Partnership an
acceptance of all of the terms and conditions of this Agreement and such other
documents or instruments as may be required to effect the admission. In the case
of such admission on any day other than the first day of a Partnership Year, all
items attributable to the General Partner Interest for such Partnership Year
shall be allocated between the transferring General Partner and such successor
as provided in Section 11.6D hereof.
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Section 12.2 Admission of Additional Limited Partners
A. After the admission to the Partnership of the additional Limited
Partners on the date hereof, a Person who makes a Capital Contribution to the
Partnership in accordance with this Agreement shall be admitted to the
Partnership as an Additional Limited Partner only upon furnishing to the General
Partner (i) evidence of acceptance in form satisfactory to the General Partner
of all of the terms and conditions of this Agreement and the Exchange Rights
Agreement, including, without limitation, the power of attorney granted in
Section 2.4 hereof and (ii) such other documents or instruments as may be
required in the discretion of the General Partner in order to effect such
Person' s admission as an Additional Limited Partner.
B. Notwithstanding anything to the contrary in this Section 12.2,
no Person shall be admitted as an Additional Limited Partner without the
consent of the General Partner, which consent may be given or withheld in the
General Partner' s sole and absolute discretion. The admission of any Person
as an Additional Limited Partner shall become effective on the date upon which
the name of such Person is recorded on the books and records of the Partnership,
following the consent of the General Partner to such admission.
C. If any Additional Limited Partner is admitted to the Partnership
on any day other than the first day of a Partnership Year, then Net Income, Net
Losses, each item thereof and all other items allocable among Partners and
Assignees for such Partnership Year shall be allocated among such Additional
Limited Partner and all other Partners and Assignees by taking into account
their varying interests during the Partnership Year in accordance with Section
706(d) of the Code, using the interim closing of the books method. Solely for
purposes of making such allocations, each of such item for the calendar month in
which an admission of any Additional Limited Partner occurs shall be allocated
among all of the Partners and Assignees, including such Additional Limited
Partner. All distributions of Available Cash with respect to which the
Partnership Record Date is before the date of such admission shall be made
solely to Partners and Assignees, other than the Additional Limited Partner, and
all distributions of Available Cash thereafter shall be made to all of the
Partners and Assignees, including such Additional Limited Partner.
Section 12.3 Amendment of Agreement and Certificate of Limited
Partnership
For the admission to the Partnership of any Partner, the General
Partner shall take all steps necessary and appropriate under the Act to amend
the records of the Partnership and, if necessary, to prepare as soon as
practical an amendment of this Agreement (including an amendment of Exhibit A)
and, if required by law, shall prepare and file an amendment to the Certificate
and may for this purpose exercise the power of attorney granted pursuant to
Section 2.4 hereof.
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ARTICLE 13
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 13.1 Dissolution
The Partnership shall not be dissolved by the admission of
Substituted Limited Partners or Additional Limited Partners or by the admission
of a successor General Partner in accordance with the terms of this Agreement.
In the event of the withdrawal of the General Partner, any successor General
Partner shall continue the business of the Partnership. The Partnership shall
dissolve, and its affairs shall be wound up, only upon the first to occur of any
of the following ("Liquidating Events"):
A. the expiration of its term as provided in Section 2.5 hereof;
B. an event of withdrawal of the General Partner, as defined in the
Act (other than an event of bankruptcy), unless, within ninety (90) days after
such event of withdrawal a majority in interest of the remaining Partners agree
in writing to continue the business of the Partnership and to the appointment,
effective as of the date of withdrawal, of a successor General Partner;
C. from and after the date of this Agreement through December 31,
2094, an election to dissolve the Partnership made by the General Partner, with
the Consent of Limited Partners holding 85% or more of the Limited Partnership
Interests (including Limited Partnership Interests held by the Company);
D. on or after January 1, 2095, an election to dissolve the
Partnership made by the General Partner, in its sole and absolute discretion;
E. entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the Act;
F. the sale of all or substantially all of the assets and
properties of the Partnership;
G. a final and non-appealable judgment is entered by a court of
competent jurisdiction ruling that the General Partner is bankrupt or insolvent,
or a final and non-appealable order for relief is entered by a court with
appropriate jurisdiction against the General Partner, in each case under any
federal or state bankruptcy or insolvency laws as now or hereafter in effect,
unless prior to the entry of such order or judgment all of the remaining
Partners agree in writing to continue the business of the Partnership and to the
appointment, effective as of a date prior to the date of such order or judgment,
of a substitute General Partner.
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Section 13.2 Winding Up
A. Upon the occurrence of a Liquidating Event, the Partnership
shall continue solely for the purposes of winding up its affairs in an orderly
manner, liquidating its assets, and satisfying the claims of its creditors and
Partners. No Partner shall take any action that is inconsistent with, or not
necessary to or appropriate for, the winding up of the Partnership's business
and affairs. The General Partner, or, in the event there is no remaining
General Partner, any Person elected by Limited Partners holding at least a
majority of the Limited Partnership Interests (the General Partner or such
other Person being referred to herein as the "Liquidator"), shall be
responsible for overseeing the winding up and dissolution of the Partnership
and shall take full account of the Partnership's liabilities and property and
the Partnership property shall be liquidated as promptly as is consistent with
obtaining the fair value thereof, and the proceeds therefrom (which may, to the
extent determined by the General Partner, include shares of beneficial interest
or other securities of the Company) shall be applied and distributed in the
following order:
(1) First, to the payment and discharge of all of the
Partnership's debts and liabilities to creditors other
than the Partners;
(2) Second, to the payment and discharge of all of the
Partnership's debts and liabilities to the General
Partner;
(3) Third, to the payment and discharge of all of the
Partnership's debts and liabilities to the other
Partners; and
(4) The balance, if any, to the General Partner and
Limited Partners to the extent of and in accordance
with the positive balances in their Capital Accounts,
after giving effect to all contributions,
distributions, and allocations for all periods.
The General Partner shall not receive any additional compensation for any
services performed pursuant to this Article 13.
B. Notwithstanding the provisions of Section 13.2A hereof which
require liquidation of the assets of the Partnership, but subject to the order
of priorities set forth therein, if prior to or upon dissolution of the
Partnership the Liquidator determines that an immediate sale of part or all of
the Partnership's assets would be impractical or would cause undue loss to the
Partners, the Liquidator may, in its sole and absolute discretion, defer for a
reasonable time the liquidation of any asset except those necessary to satisfy
liabilities of the Partnership (including to those Partners as creditors) and/or
distribute to the Partners, in lieu of cash, as tenants in common and in
accordance with the provisions of Section 13.2A hereof, undivided interests in
such Partnership assets as the Liquidator deems not suitable for liquidation.
Any such distributions in kind shall be made only if, in the good faith judgment
of the Liquidator, such distributions in kind are in the best interests of the
Partners, and shall
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be subject to such conditions relating to the disposition and management of such
properties as the Liquidator deems reasonable and equitable and to any
agreements governing the operation of such properties at such time. The
Liquidator shall determine the fair market value of any property distributed in
kind using such reasonable method of valuation as it may adopt.
C. In the discretion of the Liquidator, a pro rata portion of the
distributions that would otherwise be made to the General Partner and Limited
Partners pursuant to this Article 13 may be:
(1) distributed to a trust established for the benefit
of the General Partner and Limited Partners for the
purposes of liquidating Partnership assets, collecting
amounts owed to the Partnership, and paying any
contingent or unforeseen liabilities or obligations of
the Partnership or the General Partner arising out of
or in connection with the Partnership. The assets of
any such trust shall be distributed to the General
Partner and Limited Partners from time to time, in the
reasonable discretion of the Liquidator, in the same
proportions as the amount distributed to such trust by
the Partnership would otherwise have been distributed
to the General Partner and Limited Partners pursuant
to this Agreement; or
(2) withheld or escrowed to provide a reasonable
reserve for Partnership liabilities (contingent or
otherwise) and to reflect the unrealized portion of
any installment obligations owed to the Partnership,
provided that such withheld or escrowed amounts shall
be distributed to the General Partner and Limited
Partners in the manner and order of priority set forth
in Section 13.2A as soon as practicable.
Section 13.3 No Obligation to Contribute Deficit
If any Partner has a deficit balance in his Capital Account (after
giving effect to all contributions, distributions and allocations for all
taxable years, including the year during which such liquidation occurs), such
Partner shall have no obligation to make any contribution to the capital of the
Partnership with respect to such deficit, and such deficit shall not considered
a debt owed to the Partnership or to any other Person for any purpose
whatsoever.
Section 13.4 Rights of Limited Partners
Except as otherwise provided in this Agreement, each Limited Partner
shall look solely to the assets of the Partnership for the return of its Capital
Contributions and shall have no right or power to demand or receive property
other than cash from the Partnership.
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Except as otherwise provided in this Agreement, no Limited Partner shall have
priority over any other Partner as to the return of its Capital Contributions,
distributions, or allocations.
Section 13.5 Notice of Dissolution
In the event a Liquidating Event occurs or an event occurs that
would, but for the provisions of an election or objection by one or more
Partners pursuant to Section 13.1, result in a dissolution of the Partnership,
the General Partner shall, within thirty (30) days thereafter, provide written
notice thereof to each of the Partners.
Section 13.6 Termination of Partnership and Cancellation of
Certificate of Limited Partnership
Upon the completion of the liquidation of the Partnership's assets,
as provided in Section 13.2 hereof, the Partnership shall be terminated, a
certificate of cancellation shall be filed, and all qualifications of the
Partnership as a foreign limited partnership in jurisdictions other than the
state of Delaware shall be canceled and such other actions as may be necessary
to terminate the Partnership shall be taken.
Section 13.7 Reasonable Time for Winding-Up
A reasonable time shall be allowed for the orderly winding-up of the
business and affairs of the Partnership and the liquidation of its assets
pursuant to Section 13.2 hereof in order to minimize any losses otherwise
attendant upon such winding-up, and the provisions of this Agreement shall
remain in effect among the Partners during the period of liquidation.
Section 13.8 Waiver of Partition
Each Partner hereby waives any right to partition of the Partnership
property.
Section 13.9 Special Tax Liquidation
A. Notwithstanding anything in this Agreement to the contrary, if
as a result of RPS' purchase of reverse repurchase obligations during 1994, RPS,
pursuant to a Final Determination, loses its ability to be taxed as a REIT under
the Code, a majority of the Continuing Trustees shall have the right to elect,
within one year of such Final Determination, to cause the Partnership (subject
to the approval of RPS' shareholders if required under applicable law and the
right of first offer set forth in Section 13.9B below) to sell or dispose of all
the assets of the Partnership (which may be accomplished by merger, business
combination, direct transfer or otherwise) and liquidate the Partnership and RPS
(the "SPECIAL TAX LIQUIDATION"); provided, however, the Continuing Trustees
shall not have the right to cause a Special Tax Liquidation to occur if by
reason of the Final Determination or by right (without any further action taken
by RPS), RPS is entitled to elect to be treated as a real
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estate investment trust under the Code for the year immediately following the
year in which such Final Determination occurs.
B. (1) If the Continuing Trustees determine to solicit, or cause
to be solicited, proposals for the acquisition (whether by means of a sale of
stock, exchange, consolidation, sale of assets or merger) of the Partnership's
properties (the "PROPERTIES") pursuant to the Special Tax Liquidation provision
set forth in Section 13.9A, the Continuing Trustees shall first give the Ramco
Principals written notice (the "OFFER NOTICE") of such determination, which
notice shall include a term sheet stating, among other material terms, the
minimum sales price that the Continuing Trustees would entertain for the
Properties (the "TARGET PRICE"). The Ramco Principals shall have the right for a
period of 60 days following the delivery of the Offer Notice (the "RAMCO OFFEREE
ACCEPTANCE PERIOD") to accept the offer to purchase all but not less than all
the Properties at the Target Price and upon the other terms provided with the
Offer Notice. Notwithstanding the foregoing, if an Offer Notice is delivered the
Ramco Principals shall have the right to purchase for cash RPS' entire
partnership interests in the Partnership at a price equal to the amount RPS
would have been entitled to receive upon dissolution of the Partnership pursuant
to the liquidation formula set forth in Section 13.2 if the Partnership had sold
all the properties for cash at the Target Price.
(2) The Ramco Principals shall, if they so desire, exercise
their right of first offer by delivering to the Continuing Trustees written
notice of their election prior to 5:00 p.m. New York City time on or before
the last day of the Ramco Offeree Acceptance Period. Only a single Person
controlled solely by one or more of the Ramco Principals shall be permitted to
accept the offer set forth in the Offer Notice. The acceptance of the offer to
purchase all of the Properties shall identify the committed source of financing
for such purchase or provide evidence that the Person which is accepting the
offer is able to effect the purchase. The Continuing Trustees shall, as soon as
reasonably possible, negotiate in good faith a definitive acquisition agreement
containing appropriate provisions customary for a transaction of the
contemplated type; provided, however, that if the Continuing Trustees and the
Person which is accepting the offer are unable to conclude the negotiation of
such definitive agreement within forty-five (45) days of the delivery of the
acceptance of the offer (the "NEGOTIATION PERIOD"), the Continuing Trustees
shall be free to resume their efforts to sell the Properties to other
prospective buyers as provided in subsection (3) below.
(3) If the Ramco Principals do not accept the offer included
in the Offer Notice during the Ramco Offeree Acceptance Period, or the
Continuing Trustees and the Person which is accepting the offer set forth in
such Notice are unable to conclude negotiations of a definitive agreement
during the Negotiation Period, the Continuing Trustees shall have the right
for a period of one hundred and eighty (180) days thereafter to sell the
Properties or, within such one hundred and eighty day period, to enter into a
definitive agreement to sell such Properties within ninety (90) days of the
date of such agreement for a sales price equal to or greater than the Target
Price and upon terms that are not materially less favorable to the Partnership
than the terms provided to the Ramco Principals in the Offer Notice.
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(4) If the Continuing Trustees receive a written offer for the
Properties at any time during such one hundred and eighty day period which is
acceptable to the Continuing Trustees but is less than the Target Price or upon
terms materially less favorable to the Partnership than the terms provided to
the Ramco Principals as set forth in the Offer Notice (the "BELOW TARGET PRICE
OFFER"), the Continuing Trustees shall promptly deliver a copy of such written
offer to the Ramco Principals. During the thirty (30) day period following
delivery of such written offer, a single Person controlled by one or more of the
Ramco Principals shall have the right to accept the offer to purchase all, but
not less than all, of the Properties on the terms reflected in the Below Target
Price Offer. Notwithstanding the foregoing, if a Below Target Price Offer is
delivered the Ramco Principals shall have the right to purchase for cash the RPS
entire partnership interests in the Partnership at a price equal to the amount
RPS would have been entitled to receive upon dissolution of the Partnership
pursuant to the liquidation formula set forth in Section 13.2 if the Partnership
had sold all the Properties for cash at the Below Target Price Offer. The Person
which has the right to accept such offer on behalf of the Ramco Principals
shall, if it so desires, exercise such right by delivering to the Continuing
Trustees written notice of its election prior to 5:00 p.m. New York City time on
or before the final day of such additional thirty (30) day period and the
Continuing Trustees and the Person which is accepting such offer shall then
negotiate a definitive acquisition agreement in the manner contemplated by
subsection (b) above. If (x) the Person entitled to accept such offer on behalf
of the Ramco Principals does not elect to accept the offer to purchase the
Properties on such terms within such 30-day period or the Continuing Trustees
and the Person which has accepted such offer on behalf of the Ramco Principals
are unable to conclude negotiations of a definitive agreement within forty-five
(45) days of the date of the acceptance of the Below Target Price Offer or (y)
if the Person entitled to accept such offer does not provide evidence of the
committed source of financing for such purchase within thirty (30) days after
such offer was accepted, the Continuing Trustees shall have one hundred and
eighty (180) days to consummate the sale of the Properties at a price and upon
terms that are not materially less favorable to the Partnership than the price
and terms specified in the written offer delivered to Ramco Principals.
(5) If a Person controlled by the Ramco Principals enters into a
definitive agreement to purchase the Properties upon the terms set forth in the
Offer Notice or the Below Target Price Offer (as the case may be) and fails to
consummate the purchase of the Properties upon the terms set forth in such
agreement, the Continuing Trustees (on behalf of the Partnership) shall, in
addition to any other rights RPS or the Partnership may have at law or equity,
have the option to sell the Properties free and clear of the right of first
offer and price restriction set forth herein.
(6) The right of first offer granted to the Ramco Principals herein
shall immediately terminate if at any time one of the following events occurs:
(a) the Ramco Principals collectively hold beneficially and of record less than
600,000 OP Units (as defined below), (b) the OP Units held by the Ramco
Principals are exchangeable into less than 10% of the outstanding Shares or (c)
the Ramco Principals sell, exchange, transfer or dispose of more than 50% of the
OP Units issued to them at Closing.
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(7) Except as expressly permitted in this section, the right of
first offer granted to the Ramco Principals is not assignable to any Person.
ARTICLE 14
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS
Section 14.1 Amendments
A. Amendments to this Agreement may be proposed by the General
Partner or by any Limited Partners (other than the Company) holding in the
aggregate 25 percent or more of the Partnership Interests. Following such
proposal, the General Partner shall submit any proposed amendment to the Limited
Partners. The General Partner shall seek the written vote of the Partners on the
proposed amendment or shall call a meeting to vote thereon and to transact any
other business that it may deem appropriate. For purposes of obtaining a written
vote, the General Partner may require a response within a reasonable specified
time, but not less than fifteen (15) days, and failure to respond in such time
period shall constitute a vote which is consistent with the General Partner's
recommendation with respect to the proposal. Except as provided in Section
13.1C, 14.1B, 14.1C or 14.1D, a proposed amendment shall be adopted and be
effective as an amendment hereto if it is approved by the General Partner and it
receives the Consent of Limited Partners holding 85% or more of the Percentage
Interests of the Limited Partners (including Limited Partner Interests held by
the Company).
B. Notwithstanding Section 14.1A, the General Partner shall have
the power, without the consent of the Limited Partners, to amend this Agreement
as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner
or surrender any right or power granted to the General
Partner or any Affiliate of the General Partner for
the benefit of the Limited Partners;
(2) to reflect the admission, substitution,
termination, or withdrawal of Partners in accordance
with this Agreement;
(3) to set forth the designations, rights, powers,
duties, and preferences of the holders of any
additional Partnership Interests issued pursuant to
Section 4.3 hereof;
(4) to reflect a change that is of an inconsequential
nature and does not adversely affect the Limited
Partners in any material respect, or to cure any
ambiguity, correct or supplement any provision in this
Agreement not inconsistent with law or with other
provisions, or make other changes with respect to
matters arising
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under this Agreement that will not be inconsistent
with law or with the provisions of this Agreement; and
(5) to satisfy any requirements, conditions, or
guidelines contained in any order, directive, opinion,
ruling or regulation of a federal or state agency or
contained in federal or state law.
The General Partner shall provide notice to the Limited Partners when any action
under this Section 14.1B is taken.
C. Notwithstanding Section 14.1A and 14.1B hereof, this Agreement
shall not be amended without the Consent of each Partner adversely affected if
such amendment would (i) convert a Limited Partner's interest in the Partnership
into a General Partner Interest; (ii) modify the limited liability of a Limited
Partner in a manner adverse to such Limited Partner; (iii) alter rights of the
Partner to receive distributions pursuant to Article 5 or Article 13, or the
allocations specified in Article 6 (except as permitted pursuant to Article IV
and Section 14.1B(3) hereof); (iv) cause the termination of the Partnership
prior to the time set forth in Section 2.5 or 13.1; or (v) amend this Section
14.1C. Further, no amendment may alter the restrictions on the General Partner'
s authority set forth in Section 13.1C without the Consent specified in that
section.
D. Notwithstanding Section 14.1A or Section 14.1B hereof, the
General Partner shall not amend Section 4.3, 7.4, 7.5, 11.2 or 14.2 without the
Consent of Limited Partners holding a majority of the Percentage Interests of
the Limited Partners, excluding Limited Partner Interests held by the General
Partner.
Section 14.2 Meetings of the Partners
A. Meetings of the Partners may be called by the General Partner
and shall be called upon the receipt by the General Partner of a written
request by Limited Partners (other than the Company) holding 25 percent or more
of the Partnership Interests. The request shall state the nature of the
business to be transacted. Notice of any such meeting shall be given to all
Partners not less than seven (7) days nor more than thirty (30) days prior to
the date of such meeting. Partners may vote in person or by proxy at such
meeting. Whenever the vote or Consent of the Limited Partners is permitted or
required under this Agreement, such vote or Consent may be given at a meeting
of the Partners or may be given in accordance with the procedure prescribed
in Section 14.1A hereof. Except as otherwise expressly provided in this
Agreement, the Consent of holders of a majority of the Percentage Interests
held by Partners (including Limited Partnership Interests held by the Company)
shall control.
B. Any action required or permitted to be taken at a meeting of the
Partners may be taken without a meeting if a written consent setting forth the
action so taken is signed by a majority of the Percentage Interests of the
Partners (or such other percentage as
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is expressly required by this Agreement). Such consent may be in one instrument
or in several instruments, and shall have the same force and effect as a vote of
a majority of the Percentage Interests of the Partners (or such other percentage
as is expressly required by this Agreement). Such consent shall be filed with
the General Partner. An action so taken shall be deemed to have been taken at a
meeting held on the effective date so certified.
C. Each Limited Partner may authorize any Person or Persons to act
for him by proxy on all matters in which a Limited Partner is entitled to
participate, including waiving notice of any meeting, or voting or participating
at a meeting. Every proxy must be signed by the Limited Partner or his
attorney-in-fact. No proxy shall be valid after the expiration of eleven (11)
months from the date thereof unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the Limited Partner executing it, such
revocation to be effective upon the Partnership's receipt of written notice of
such revocation from the Limited Partner executing such proxy.
D. Each meeting of the Partners shall be conducted by the General
Partner or such other Person as the General Partner may appoint pursuant to such
rules for the conduct of the meeting as the General Partner or such other Person
deems appropriate. Meetings of Partners may be conducted in the same manner as
meetings of the shareholders of the Company and may be held at the same time,
and as part of, meetings of the shareholders of the Company.
ARTICLE 15
GENERAL PROVISIONS
Section 15.1 Addresses and Notice
Any notice, demand, request or report required or permitted to be
given or made to a Partner or Assignee under this Agreement shall be in writing
and shall be deemed given or made when delivered in person or when sent by first
class United States mail or by other means of written communication to the
Partner or Assignee at the address set forth in Exhibit A or such other address
of which the Partner shall notify the General Partner in writing.
Section 15.2 Titles and Captions
All article or section titles or captions in this Agreement are for
convenience only. They shall not be deemed part of this Agreement and in no way
define, limit, extend or describe the scope or intent of any provisions hereof.
Except as specifically provided otherwise, references to "Articles" and
"Sections" are to Articles and Sections of this Agreement.
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Section 15.3 Pronouns and Plurals
Whenever the context may require, any pronoun used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns, pronouns and verbs shall include the plural and vice
versa.
Section 15.4 Further Action
The parties shall execute and deliver all documents, provide all
information and take or refrain from taking action as may be necessary or
appropriate to achieve the purposes of this Agreement.
Section 15.5 Binding Effect
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their heirs, executors, administrators, successors, legal
representatives and permitted assigns.
Section 15.6 Creditors
Other than as expressly set forth herein with respect to the
Indemnitees, none of the provisions of this Agreement shall be for the benefit
of, or shall be enforceable by, any creditor of the Partnership.
Section 15.7 Waiver
No failure by any party to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy consequent upon a breach thereof shall constitute waiver of any
such breach or any other covenant, duty, agreement or condition.
Section 15.8 Counterparts
This Agreement may be executed in counterparts, all of which
together shall constitute one agreement binding on all of the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this Agreement immediately
upon affixing its signature hereto.
Section 15.9 Applicable Law
This Agreement shall be construed and enforced in accordance with
and governed by the laws of the State of Delaware, without regard to the
principles of conflicts of laws thereof.
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Section 15.10 Invalidity of Provisions
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
Section 15.11 Entire Agreement
This Agreement contains the entire understanding and agreement among
the Partners with respect to the subject matter hereof and supersedes any other
prior written or oral understandings or agreements among them with respect
thereto.
Section 15.12 Guaranty by the Company
The Company unconditionally and irrevocably guarantees to the
Limited Partners the performance by the General Partner of the General Partner'
s obligations under this agreement. This guarantee is exclusively for the
benefit of the Limited Partners and shall not extend to the benefit any creditor
of the Partnership.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
GENERAL PARTNER:
RAMCO-GERSHENSON PROPERTIES TRUST
By:______________________________
Title:___________________________
LIMITED PARTNERS:
[TO COME]
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Exhibit A
Partners' Contributions and Partnership Interests
<TABLE>
<CAPTION>
Name and Address Cash Agreed Value of Total OP Percentage
of Partner Contributions* Contributed Property Contribution Units Interest
- ---------------- -------------- -------------------- ------------ ----- ----------
<S> <C> <C> <C> <C> <C>
General Partner 1%
- ---------------
Ramco-Gershenson
Properties Trust
Limited Partners
- ----------------
Ramco-Gershenson
Properties Trust
[Other Limited Partners
To Come]
</TABLE>
- ------------
* The Company's Cash Contribution shall be increased by all transaction
costs paid by the Company out of the RPS Cash pursuant to the Master
Agreement.
A-1
<PAGE> 238
Exhibit B
Allocations
1. Allocation of Net Income and Net Loss.
(a) Net Income. Except as otherwise provided in this Exhibit B, Net Income
(or items thereof) (other than Net Income, or items thereof, arising in
connection with a Terminating Capital Transaction) for any fiscal year or other
applicable period shall be allocated to the Partners in accordance with their
respective Percentage Interests.
(b) Net Loss. Except as otherwise provided in this Exhibit B, Net Loss (or
items thereof) of the Partnership for each fiscal year or other applicable
period shall be allocated to the Partners in accordance with the Partners'
respective Percentage Interests. Notwithstanding the preceding sentence, to the
extent any Net Loss (or items thereof) allocated to a Partner under this
subparagraph (b) would cause such Partner (hereinafter, a "Restricted Partner")
to have an Adjusted Capital Account Deficit, or increase the amount of an
existing Adjusted Capital Account Deficit, as of the end of the fiscal year or
other applicable period to which such Net Loss relates, such Net Loss shall not
be allocated to such Restricted Partner and instead shall be allocated to the
other Partner(s) (hereinafter, the "Permitted Partners") pro rata in accordance
with each Permitted Partner's Percentage Interest.
(c) Terminating Capital Transaction; Liquidation. Allocations of Net Income
or Net Loss (or items thereof) in connection with a Terminating Capital
Transaction or Liquidation of the Partnership shall first be made so that, to
the extent possible, each Partner's Capital Account balance is equal to such
Partner's Adjusted Contribution, and the remainder of such Net Income or Net
Loss (or items thereof) shall be allocated to the Partners in accordance with
their Percentage Interests. Notwithstanding the preceding sentence, to the
extent any Net Loss (or items thereof) would be allocated to a Restricted
Partner under this subparagraph (c), such Net Loss shall not be allocated to
such Restricted Partner and instead shall be allocated to the Permitted Partners
pro rata in accordance with each Permitted Partner's Percentage Interest.
(d) Rules of Construction.
(1) Capital Account Increases. For purposes of making allocations
pursuant to subparagraph 1(c) of this Exhibit B, a Partner's Capital Account
balance shall be deemed to be increased by such Partner's share of any
Partnership Minimum Gain and Partner Minimum Gain remaining at the close of the
fiscal period in respect of which such allocations are being made.
(2) Change in Percentage Interests. In the event any Partner's
Percentage Interest changes during a fiscal year for any reason, including
without limitation, the Transfer of any interest in the Partnership, the tax
allocations contained in this Exhibit B shall be applied as necessary to reflect
the varying interests of the Partners during such year.
B-1
<PAGE> 239
2. Special Allocations. Notwithstanding any provisions of paragraph 1 of this
Exhibit B, the following special allocations shall be made.
(a) Minimum Gain Chargeback (Nonrecourse Liabilities). Except as otherwise
provided in Section 1.704-2(f) of the Regulations, if there is a net decrease in
Partnership Minimum Gain for any Partnership fiscal year, each Partner shall be
specially allocated items of Partnership income and gain for such year (and, if
necessary, subsequent years) in an amount equal to such Partner's share of the
net decrease in Partnership Minimum Gain to the extent required by Regulations
Section 1.704-2(f). The items to be so allocated shall be determined in
accordance with Sections 1.704-2(f) and (i) of the Regulations. This
subparagraph 2(a) is intended to comply with the minimum gain chargeback
requirement in said section of the Regulations and shall be interpreted
consistently therewith. Allocations pursuant to this subparagraph 2(a) shall be
made in proportion to the respective amounts required to be allocated to each
Partner pursuant hereto.
(b) Partner Minimum Gain Chargeback. Except as otherwise provided in
Section 1.704-2(i)(4) of the Regulations, if there is a net decrease in Partner
Minimum Gain attributable to a Partner Nonrecourse Debt during any fiscal year,
each Partner who has a share of the Partner Minimum Gain attributable to such
Partner Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(5) of
the Regulations, shall be specially allocated items of Partnership income and
gain for such year (and, if necessary, subsequent years) in an amount equal to
that Partner's share of the net decrease in the Partner Minimum Gain
attributable to such Partner Nonrecourse Debt to the extent and in the manner
required by Section 1.704-2(i) of the Regulations. The items to be so allocated
shall be determined in accordance with Sections 1.704-2(i)(4) and (j)(2) of the
Regulations. This subparagraph 2(b) is intended to comply with the minimum gain
chargeback requirement with respect to Partner Nonrecourse Debt contained in
said section of the Regulations and shall be interpreted consistently therewith.
Allocations pursuant to this subparagraph 2(b) shall be made in proportion to
the respective amounts required to be allocated to each Partner pursuant hereto.
(c) Qualified Income Offset. In the event a Partner unexpectedly receives
any adjustments, allocations or distributions described in Sections
1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the Regulations, and such Partner has an
Adjusted Capital Account Deficit, items of Partnership income (including gross
income) and gain shall be specially allocated to such Partner in an amount and
manner sufficient to eliminate the Adjusted Capital Account Deficit as quickly
as possible as required by the Regulations. This subparagraph 2(c) is intended
to constitute a "qualified income offset" under Section 1.704-1(b)(2)(ii)(d) of
the Regulations and shall be interpreted consistently therewith.
(d) Other Chargeback of Impermissible Negative Capital Account. To the
extent any Partner has an Adjusted Capital Account Deficit at the end of any
Partnership fiscal year, each such Partner shall be specially allocated items of
Partnership income (including gross income) and gain in the amount of such
excess as quickly as possible, provided that an allocation pursuant to this
paragraph 2(d) shall be made if and only to the extent that such Partner would
have an Adjusted Capital Account Deficit after all other allocations provided
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for in this Exhibit B have been tentatively made as if this paragraph 2(d) were
not in the Agreement.
(e) Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year or
other applicable period shall be allocated to the Partners in accordance with
their respective Percentage Interests.
(f) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any
fiscal year or other applicable period with respect to a Partner Nonrecourse
Debt shall be specially allocated to the Partner that bears the economic risk of
loss for such Partner Nonrecourse Debt (as determined under Sections
1.704-2(b)(4) and 1.704-2(i)(1) of the Regulations).
(g) Intent of Allocations. The parties intend that the allocation
provisions of this Exhibit B shall result in final Capital Account balances of
the Partners that initially are equal to each Partner's Adjusted Contribution
and are then in proportion to the Partners' respective Percentage Interests, so
that when liquidating distributions are made in accordance with such final
Capital Account balances under Section 13.2A(4) hereof, such distributions will
be able to return to each Partner its Adjusted Contribution and then will be
made in proportion to the Partners' respective Percentage Interests. To the
extent that such final Capital Account balances do not so reflect the provisions
of this Exhibit B, income and loss of the Partnership for the current year and
future years, as computed for book purposes, shall be allocated among the
Partners so as to result in final Capital Account balances reflecting the
provisions of this Exhibit B, and to the extent such allocations of items of
income (including gross income) and deduction do not result in such final
Capital Account balances, then, income and loss of the Partnership for prior
open years, as computed for book purposes (or items of gross income and
deduction of the Partnership for such years, as computed for book purposes)
shall be reallocated among the Partners consistent with the foregoing. This
subparagraph shall control notwithstanding any reallocation of income, loss, or
items thereof, as computed for book purposes, by the Internal Revenue Service or
any other taxing authority.
(h) Section 754 Adjustment. To the extent an adjustment to the adjusted tax
basis of any asset of the Partnership pursuant to Section 734(b) of the Code or
Section 743(b) of the Code is required, pursuant to Section 1.704-1(b)(2)(iv)(m)
of the Regulations, to be taken into account in determining Capital Accounts,
the amount of such adjustment to the Capital Accounts shall be treated as an
item of gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases such basis) and such gain or loss shall be specially
allocated among the Partners in a manner consistent with the manner in which
each of their respective Capital Accounts are required to be adjusted pursuant
to such section of the Regulations.
(i) Gross Income Allocation. There shall be specially allocated to the
General Partner an amount of Partnership income and gain during each Partnership
Year or portion thereof, before any other allocations are made hereunder, which
is equal to the excess, if any, of the cumulative distributions of cash made to
the General Partner under Section 7.3B hereof
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<PAGE> 241
over the cumulative allocations of Partnership income and gain to the General
Partner pursuant to this Section (i) of this Exhibit B.
3. Tax Allocations.
(a) Items of Income or Loss. Except as is otherwise provided in this
Exhibit B, an allocation of Partnership Net Income or Net Loss to a Partner
shall be treated as an allocation to such Partner of the same share of each item
of income, gain, loss, deduction and item of tax-exempt income or Section
705(a)(2)(B) expenditure (or item treated as such expenditure pursuant to
Regulations Section 1.704-1(b)(2)(iv)(i)) ("Tax Items") that is taken into
account in computing Net Income or Net Loss.
(b) Section 1245/1250 Recapture. If any portion of gain from the sale of
Partnership assets is treated as gain which is ordinary income by virtue of the
application of Code Sections 1245 or 1250 ("Affected Gain"), then such Affected
Gain shall be allocated among the Partners in the same proportion that the
depreciation and amortization deductions giving rise to the Affected Gain were
allocated. This subparagraph 3(b) shall not alter the amount of Net Income (or
items thereof) allocated among the Partners, but merely the character of such
Net Income (or items thereof). For purposes hereof, in order to determine the
proportionate allocations of depreciation and amortization deductions for each
fiscal year or other applicable period, such deductions shall be deemed
allocated on the same basis as Net Income and Net Loss for such respective
period.
(c) Precontribution Gain. The Partnership shall use the traditional method
of allocation contained in Section 1.704-3(b) of the Regulations to take into
account any variation between the adjusted basis and the fair market value of
the Initial Contributed Property at the time of the contribution
("Precontribution Gain "). By executing this Agreement, each Partner hereby
agrees to report income, gain, loss and deduction on such Partner's federal
income tax return in a manner that is consistent with the use of the traditional
method of allocation with respect to the Initial Contributed Property. With
respect to any Contributed Property, the Partnership shall use any permissible
method contained in the Regulations promulgated under Section 704(c) of the Code
selected by the General Partner, in its sole discretion, to take into account
any variation between the adjusted basis of such asset and the fair market value
of such asset as of the time of the contribution. Each Partner hereby agrees to
report income, gain, loss and deduction on such Partner's federal income tax
return in a manner consistent with the method used by the Partnership.
(d) Allocations Respecting Section 704(c) and Revaluations. If any asset
has a Gross Asset Value which is different from the Partnership's adjusted basis
for such asset for federal income tax purposes because the Partnership has
revalued such asset pursuant to Regulations Section 1.704-1(b)(2)(iv)(f), the
allocations of Tax Items shall be made in accordance with the principles of
Section 704(c) of the Code and the Regulations and the methods of allocation
promulgated thereunder, provided, however, that with respect to the
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<PAGE> 242
Initial Contributed Property, income, gain, loss and deduction with respect to
such property shall be allocated using the "traditional method" described in
Regulations Section 1.704-3(b). The intent of this subparagraph 3(d) and
subparagraph 3(c) above is that each Partner who contributed to the capital of
the Partnership a Contributed Property will bear, through reduced allocations of
depreciation, increased allocations of gain or other items, the tax detriments
associated with any Precontribution Gain. This subparagraph 3(d) and
subparagraph 3(c) are to be interpreted consistently with such intent.
(e) Excess Nonrecourse Liability Safe Harbor. Pursuant to Regulations
Section 1.752-3(a)(3), solely for purposes of determining each Partner's
proportionate share of the "excess nonrecourse liabilities" of the Partnership
(as defined in Regulations Section 1.752-3(a)(3)), the Partners' respective
interests in Partnership profits shall be determined in accordance with each
Partner's Percentage Interest; provided, however, that each Partner who has
contributed an asset to the Partnership shall be allocated, to the extent
possible, a share of "excess nonrecourse liabilities" of the Partnership which
results in such Partner being allocated nonrecourse liabilities in an amount
which is at least equal to the amount of income pursuant to Section 704(c) of
the Code and the Regulations promulgated thereunder (the "Liability Shortfall").
In the event there is an insufficient amount of nonrecourse liabilities to
allocate to each Partner an amount of nonrecourse liabilities equal to the
Liability Shortfall, then an amount of nonrecourse liabilities in proportion to,
and to the extent of, the Liability Shortfall shall be allocated to each
Partner.
(f) References to Regulations. Any reference in this Exhibit B or the
Agreement to a provision of proposed and/or temporary Regulations shall, in the
event such provision is modified or renumbered, be deemed to refer to the
successor provision as so modified or renumbered, but only to the extent such
successor provision applies to the Partnership under the effective date rules
applicable to such successor provision.
(g) Successor Partners. For purposes of this Exhibit B, a transferee of a
Partnership Interest shall be deemed to have been allocated the Net Income, Net
Loss and other items of Partnership income, gain, loss, deduction and credit
allocable to the transferred Partnership Interest that previously have been
allocated to the transferor Partner pursuant to this Agreement.
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EXHIBIT B
ACQUISITION AMENDMENT
AMENDMENT dated , 1996 to Amended and Restated
Declaration of Trust of RPS Realty Trust (the "Trust") dated October 14, 1988
(the "Declaration of Trust");
WHEREAS, Article VIII, Section 2 of the Declaration of Trust provides
for procedures governing the amendment of the Declaration of Trust;
WHEREAS, the Trustees have determined that it is in the best interests
of the Trust and its shareholders to cause the Trust to (i) increase certain
quorum percentage requirements in connection with meetings of the Board of
Trustees; (ii) establish a Nominating Committee and an Advisory Committee of the
Board of Trustees and (iii) change the name of the Trust; and
WHEREAS, the Trustees have determined to propose (i) the addition of
new Sections to Article III of the Declaration of Trust to provide for the
creation of a nominating Committee and an Advisory Committee of the Board of
Trustees, (ii) an amendment to Article IV, Section 8 of the Declaration of Trust
to increase certain quorum percentage requirements in connection with meetings
of the Board of Trustees and (iii) an amendment to Article I, Section 1 of the
Declaration of Trust to change the name of the Trust.
NOW, THEREFORE, the Trustees have adopted the following amendments to
the Declaration of Trust, which amendments respectively shall become effective
upon approval thereof by the holders of a majority of the Trust's issued and
outstanding shares of beneficial interest:
1. Article III of the Declaration of Trust is amended by adding the
following Sections to the end thereof (new language appearing in italics):
Section 14. NOMINATING COMMITTEE. The Board of Trustees shall appoint
from among its members a Nominating Committee, which shall consist of at
least three members, all of whom shall be Independent Trustees, and which
shall nominate persons for election to the Board of Trustees. The
Nominating Committee will consider nominees recommended by other
shareholders in accordance with Article IV, Section 1."
Section 15. ADVISORY COMMITTEE. The Board of Trustees shall appoint an
Advisory Committee, which shall consist of three Persons who are not
Trustees, and which shall have the power to consult with and advise the
Board of Trustees as required. The initial members of the Advisory
Committee shall be Michael A. Ward, Richard Gershenson and Bruce
Gershenson.
2. The second paragraph of Article IV, Section 1 of the Declaration of
Trust is amended as follows (new language appearing in italics):
The number of Trustees shall be not less than three nor more than
fifteen, as fixed from time to time by the Board of Trustees. Unless
otherwise fixed by the Board of Trustees
<PAGE> 244
or the Shareholders, the number of Trustees constituting the entire Board
of Trustees shall be nine. Except for the initial Trustees during their
initial term, the Trustees shall be elected at the annual meeting of
Shareholders and each Trustee shall be elected to serve until his successor
shall be elected and shall qualify. A Trustee shall be an individual at
least 21 years of age who is not under legal disability. A Trustee shall
not be required to devote his full business time and effort to the Trust. A
Trustee shall qualify as such when he has either signed this Declaration of
Trust or agreed in writing to be bound by it. No bond shall be required to
secure the performance of a Trustee unless the Trustees so provide or as
required by law.
3. Article IV, Section 8 of the Declaration of Trust is amended as
follows (new language appearing in italics):
"Section 8. ACTIONS BY TRUSTEES. The trustees shall hold at least four
meetings per year. The Trustees may act with or without a meeting. The
presence of at least 75% of the Board of Trustees then in office, the
majority of which shall be Independent Trustees, shall be necessary to
constitute a quorum for the transaction of business, except to adjourn a
meeting. Every act or decision done or made by the affirmative vote of at
least a majority of the Board of Trustees at a meeting duly held at which a
quorum is present shall be regarded as an act of the Board of Trustees
unless a greater number is required by law or by the ByLaws or by this
Declaration of Trust. If at any time more than one vacancy exists on the
Board of Trustees, a quorum of the Board of Trustees shall not exist unless
and until such vacancies are filled so that no more than one vacancy exists
on the Board of Trustees. Any agreement, deed, mortgage, lease or other
instrument of writing executed by any one or more of the Trustees or by any
one or more authorized persons shall be valid and binding upon the Trustees
and upon the Trust when authorized by action of the Trustees."
4. Article I, Section 1 of the Declaration of Trust is amended as
follows (new language appear in italics):
"Section 1. NAME. The name of Trust created by this Declaration of
Trust shall be "Ramco-Gershenson Properties Trust" and so far as may be
practicable, the Trustees of the Trust ("Trustees" or the "Board of
Trustees") shall conduct the Trust's activities, execute all documents and
sue or be sued under the name, which name (and the word "Trust" whenever
used in this Declaration of Trust, except where the context otherwise
requires) shall refer to the Trustees in their capacity as Trustees and not
individually or personally, and shall not refer to the officers or
Shareholders of the Trust or the agents or employees of the Trust or of
such Trustees. Should the Trustees determine that the use of such name is
not practicable, legal or convenient, they may use such other designation
or they may adopt such other name of the Trust as they deem proper and the
Trust may hold property and conduct its activities under such designation
or name, subject, however, to the limitations contained in the next
succeeding paragraphs."
Except as so amended, the Declaration of Trust shall remain unmodified
and in full force and effect.
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<PAGE> 245
IN WITNESS WHEREOF, the undersigned, being not less than a majority of
the Trustees of RPS REALTY TRUST, have each executed this Amendment to the
Amended and Restated Declaration of Trust as of , 1996.
-------------------------------------
Joel M. Pashcow
-------------------------------------
Herbert Liechtung
-------------------------------------
Arthur Goldberg
-------------------------------------
Edwin J. Glickman
-------------------------------------
Alfred D. Stalford
-------------------------------------
Samuel M. Eisenstat
-------------------------------------
Edward Blumenfeld
-------------------------------------
William A. Rosoff
-------------------------------------
Stephen Blank
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EXHIBIT E
FORM OF NEW OPTION PLAN
1995 STOCK OPTION PLAN
OF
RAMCO-GERSHENSON PROPERTIES TRUST
<PAGE> 247
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS . . . . . . . E-1
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY
TO SELECT PARTICIPANTS AND DETERMINE AWARDS . . . . . . E-5
SECTION 3. SHARES ISSUABLE UNDER THE PLAN; MERGERS;
SUBSTITUTION . . . . . . . . . . . . . . . . . . . . . E-6
SECTION 4. ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . E-7
SECTION 5. STOCK OPTIONS . . . . . . . . . . . . . . . . . . . . E-7
SECTION 6. TAX WITHHOLDING . . . . . . . . . . . . . . . . . . . E-12
SECTION 7. TRANSFER, LEAVE OF ABSENCE, ETC. . . . . . . . . . . . E-13
SECTION 8. AMENDMENTS AND TERMINATION . . . . . . . . . . . . . . E-14
SECTION 9. CHANGE OF CONTROL PROVISIONS . . . . . . . . . . . . . E-14
SECTION 10. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . E-16
SECTION 11. EFFECTIVE DATE OF PLAN . . . . . . . . . . . . . . . . E-17
SECTION 12. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . E-17
</TABLE>
<PAGE> 248
1995 STOCK OPTION PLAN
OF
RAMCO-GERSHENSON PROPERTIES TRUST
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS
The 1995 Stock Option Plan of Ramco-Gershenson Properties Trust (the
"Plan") was adopted to encourage and enable the officers and employees of
Ramco-Gershenson Properties Trust, a Massachusetts business trust (the
"Company"), and the officers and employees of Ramco-Gershenson Properties,
L.P., a Delaware limited partnership (the "Operating Partnership"),
Ramco-Gershenson, Inc., a Michigan corporation (the "Management Company"), and
their respective Subsidiaries upon whose judgment, initiative and efforts the
Company largely depends for the successful conduct of its business, to acquire
a proprietary interest in the Company. It is anticipated that providing such
persons with a direct stake in the Company's welfare will assure a closer
identification of their interests with those of the Company, thereby
stimulating their efforts on the Company's behalf and strengthening their
desire to remain with the Company.
The following terms shall be defined as set forth below:
"Act" means the Securities Exchange Act of 1934, as amended.
"Award" or "Awards" means Stock Options.
"Board" means the Board of Trustees of the Company.
"Cause" (a) if an Employee is not subject to a written employment
agreement with any Employer, means the occurrence of one or more of the
following: (i) an Employee is convicted of, pleads guilty to, or confesses to
any felony or any act of fraud, misappropriation or embezzlement which has an
immediate and materially adverse effect on an Employer, as determined by the
Board in good faith in its sole discretion, (ii) an Employee engages in a
fraudulent act to the material damage or prejudice of an Employer or in conduct
or activities materially damaging to the property, business or reputation of an
Employer, all as determined by the Board in good faith in its sole discretion,
(iii) any material act or omission by an Employee involving malfeasance or
negligence in the performance of the Employee's duties to an Employer to the
material detriment of an Employer, as determined by the Board in good faith in
its sole discretion, which has not been corrected by the Employee within 30
days after written notice of any such act or omission, (iv) failure by an
Employee to comply in any material respect with any written policies or
directives of the Board as determined by the Board in good faith in its sole
discretion, which has not been corrected
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by the Employee within 30 days after written notice of such failure, or (v)
material breach by an Employee of his noncompetition agreement with an
Employer, if any, as determined by the Board in good faith in its sole
discretion or (b) if an Employee is subject to a written employment agreement
with any Employer, has the meaning set forth in such employment agreement.
"Change of Control" (a) if an Employee is not subject to a written
employment agreement with any Employer, shall have the meaning set forth in
Section 9 or (b) if any Employee is subject to a written employment agreement
with any Employer, has the meaning set forth in such employment agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"Committee" means the Committee of the Board referred to in Section 2.
"Company Subsidiary" means any corporation, partnership or other
entity (other than the Company) in an unbroken chain beginning with the Company
if all of them, in the aggregate, other than the last one in the unbroken
chain, then own stock or other interests possessing 50 percent or more of the
total combined economic interests or the total combined voting power of all
classes of stock or other interests in each of the others in such chain;
provided, however, that "Company Subsidiary" shall not include the Operating
Partnership, the Management Company or any of their Subsidiaries.
"Declaration of Trust" means the Amended and Restated Declaration of
Trust of the Company dated October 14, 1988, as amended.
"Disability" (a) if an Employee is not subject to a written employment
agreement with any Employer, shall mean an Employee's inability to perform his
normal required services for the Employer for a period of six consecutive
months by reason of the Employee's mental or physical disability, as determined
by the Committee in good faith in its sole discretion or (b) if an Employee is
subject to a written employment agreement with any Employer, has the meaning
set forth in such employment agreement.
"Disinterested Person" means an Independent Trustee who qualifies as
such under Rule 16b-3(c)(2)(i) promulgated under the Act, or any successor
definition under the Act.
"Effective Date" has the meaning set forth in Section 11.
"Employee" means any officer or other employee (as defined in
accordance with Section 3401(c) of the Code) of an Employer.
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"Employer" means, as the context may require, the Company, the
Operating Partnership, the Management Company and their respective
Subsidiaries.
"Existing Option Plan" means the RPS Realty Trust 1989 Employees'
Stock Option Plan, as amended from time to time.
"Fair Market Value" on any given date means the last reported sale
price at which Shares are traded on such date or, if no Shares are traded on
such date, the most recent date on which Shares were traded, as reflected on
the New York Stock Exchange or, if applicable, any other national stock
exchange on which the Shares are traded. If the Shares are not listed on any
national exchange, the Committee will determine the Fair Market Value.
"Independent Trustee" means a member of the Board who is not also an
Employee of the Trust and who is otherwise a Disinterested Person.
"Management Company Subsidiary" means any corporation, partnership or
other entity (other than the Management Company) in an unbroken chain beginning
with the Management Company if all of them, in the aggregate, other than the
last one in the unbroken chain, then own stock or other interests possessing 80
percent or more of the total combined economic interests or the total combined
voting power of all classes of stock or other interests in each of the others
in such chain.
"OP Units" means units of limited partnership interest of
Ramco-Gershenson Properties, L.P., a Delaware limited partnership.
"Operating Partnership Subsidiary" means any corporation, partnership
or other entity (other than the Operating Partnership) in an unbroken chain
beginning with the Operating Partnership if all of them, in the aggregate,
other than the last one in the unbroken chain, then own stock or other
interests possessing 50 percent or more of the total combined economic
interests or the total combined voting power of all classes of stock or other
interests in each of the others in such chain.
"Option" or "Stock Option" means any option to purchase Shares granted
pursuant to Section 5.
"Predecessor Entities" means 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 Ramco-Gershenson, Inc., a Michigan
corporation.
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<PAGE> 251
"Ramco Transaction" means the transaction to be effectuated by the
Company, the Operating Partnership and Ramco-Gershenson, Inc. and its
affiliates pursuant to an Amended and Restated Master Agreement dated as of
December 27, 1995 (the "Master Agreement").
"Retirement" means an Employee's Termination of Employment after
attainment of age 55 and completion of 15 years of continuous service to the
Company and/or any other Employer and/or any Predecessor Entity as a Trustee or
Employee.
"Share" means the shares of beneficial interest, par value $.10 per
share, of the Company, subject to adjustments pursuant to Section 3.
"Share Ownership Limit" means the restrictions contained in the
Company's Declaration of Trust provided that, subject to certain exceptions, no
individual shareholder may own, or be deemed to own by virtue of the
attribution provisions of the Code, more than 9.8 percent of the aggregate
number or value of the Company's outstanding shares of beneficial interest.
"Subsidiary" means a Company Subsidiary, an Operating Partnership
Subsidiary or a Management Company Subsidiary.
"Termination of Employment" means, subject to Section 7, the time when
the employee-employer relationship between the Employer and an Employee is
terminated for any reason or, if Employee is covered by an employment
agreement, the time such employment agreement expires by its terms (provided
such Employee does not continue to serve the Employer as an Employee);
provided, however, that, if an Employer ceases to qualify as such under the
Plan as a result of a sale of shares of beneficial interest or other interests
or any similar event, a Termination of Employment of the Employees who were
employed by such Employer immediately prior to such cessation shall be deemed
to have occurred. Subject to the terms of any written employment agreement
between an Employer and an Employee, the Committee, in its sole and absolute
discretion, shall determine the effect of all other matters and questions
relating to Termination of Employment, including, but not limited to, the
question of whether a Termination of Employment resulted from Disability or for
Cause, and, subject to Section 7, all questions of whether particular leaves of
absence shall constitute Terminations of Employment.
"Trustees' Plan" means the RPS Realty Trust 1989 Trustees' Stock
Option Plan, as amended from time to time.
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<PAGE> 252
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT
PARTICIPANTS AND DETERMINE AWARDS
(a) Committee. The Plan shall be administered by all of the
Independent Trustee members of the Compensation Committee of the Board, or any
other committee of not less than two Independent Trustees performing similar
functions, as appointed by the Board from time to time. Each member of the
Committee shall be a Disinterested Person and an "outside director" within the
meaning of Section 162(m) of the Code and the regulations promulgated
thereunder to the extent applicable.
(b) Powers of Committee. The Committee shall have the power and
authority to grant Awards consistent with the terms of the Plan, including the
power and authority:
(i) to select the officers and other Employees to whom Awards
may from time to time be granted;
(ii) to determine the time or times of grant, and the extent
to which, if any, Stock Options are granted to any one or more
participants;
(iii) to determine the number of Shares to be covered by any
Award;
(iv) to determine and modify the terms and conditions,
including restrictions, not inconsistent with the terms of the Plan,
of any Award, which terms and conditions may differ among individual
Awards and participants, and to approve the form of written
instruments evidencing the Awards;
(v) to accelerate the exercisability or vesting of all or any
portion of any Award;
(vi) subject to the provisions of Section 5(a)(iii), to
extend the period in which Stock Options may be exercised; and
(vii) to adopt, alter and repeal such rules, guidelines and
practices for administration of the Plan and for its own acts and
proceedings as it shall deem advisable; to interpret the terms and
provisions of the Plan and any Award (including related written
instruments); to make all determinations it deems advisable for the
administration of the Plan; to decide all disputes arising in
connection with the Plan; and to otherwise supervise the
administration of the Plan.
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<PAGE> 253
All decisions and interpretations of the Committee shall be binding on
all persons, including the Company and Plan participants.
SECTION 3. SHARES ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION
(a) Shares Issuable. The maximum number of Shares reserved and
available for issuance under the Plan shall equal the difference between (i) 9
percent of the total number of issued and outstanding shares of Stock (on a
fully diluted basis assuming the exchange of all OP Units for Shares) and (ii)
the number of Shares subject to options under the Existing Option Plan and the
Trustees' Plan, calculated with respect to both clauses (i) and (ii) as of the
Effective Date. For purposes of this limitation, the Shares underlying any
Awards which are forfeited, cancelled, reacquired by the Company, satisfied
without the issuance of Shares or otherwise terminated (other than by exercise)
shall be added back to the shares of Shares available for issuance under the
Plan so long as the participants to whom such Awards had been previously
granted received no benefits of ownership of the underlying Shares to which the
Award related. Subject to such overall limitation and except for the Initial
Grants, Shares in respect of Awards granted under the Plan may be issued up to
such maximum number, provided, however, that no more than 50,000 Stock Options
(plus, if applicable, any Initial Grant for 1996) may be granted to any one
individual during any calendar year. The shares available for issuance under
the Plan may be authorized buy unissued Shares or Shares reacquired by the
Company.
(b) Dividends, Mergers, etc. In the event of a Share dividend,
Share split or similar change in capitalization affecting the Shares, the
Committee shall make appropriate adjustments in (i) the number and kind of
shares of Stock or securities on which Awards may thereafter be granted, (ii)
the number and kind of shares remaining subject to outstanding Awards, and
(iii) the option or purchase price in respect of such shares.
(c) Substitute Awards. The Committee may grant Awards under the
Plan in substitution for stock and stock based awards held by employees of
another corporation who concurrently become Employees as a result of a merger
or consolidation of the employing corporation with the Company or a Subsidiary
or the acquisition by the Company or a Subsidiary of property or stock of the
employing corporation. The Committee may direct that the substitute awards be
granted on such terms and conditions as the Committee considers appropriate in
the circumstances.
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<PAGE> 254
SECTION 4. ELIGIBILITY
Participants in the Plan will be the persons listed on Exhibit A and
such full or part-time officers and other key Employees who are responsible for
or contribute to the management, growth or profitability of the Company and the
other Employers and who are selected from time to time by the Committee, in its
sole discretion.
SECTION 5. STOCK OPTIONS
Any Stock Option granted under the Plan shall be in such form, and
shall be evidenced by such written Option agreement, as the Committee may from
time to time approve. Stock Options granted under the Plan shall be
non-qualified stock options and are not intended to qualify as "incentive stock
options," as defined in Section 422 of the Code.
(a) Stock Options Granted to Employees. Upon the adoption of the
Plan by the Board, and subject to Section 11, the Stock Options set forth on
Exhibit A hereto shall be granted (the "Initial Grants"). Thereafter, the
Committee in its discretion may grant Stock Options to eligible Employees of
the Company or any other Employer.
Stock Options granted to Employees pursuant to this Section 5(a) shall
be subject to the following terms and conditions and shall contain such
additional terms and conditions, not inconsistent with the terms of the Plan,
as the Committee shall deem desirable:
(i) Exercise Price. The exercise price per share for the
Shares covered by a Stock Option granted pursuant to this Section 5(a)
shall be determined by the Committee at the time of grant but shall
not be less than 100% of the Fair Market Value on the date of grant;
provided that, the exercise price per share for the Shares covered by
a Stock Option granted as part of the Initial Grants shall be equal to
the OPV (as defined in the Master Agreement) per Share.
(ii) Grant of Discount Options in Lieu of Cash Bonus. If
authorized by the Committee, upon the request of an eligible Employee
and with the consent of the Committee, such Employee may elect each
calendar year to receive a Stock Option in lieu of a cash bonus to
which he may become entitled during the following calendar year
pursuant to any other plan of the Company or any other Employer, but
only if such Employee makes an irrevocable election to waive receipt
of all or a portion of such cash bonus. Such election shall be made
on or before the date set by the Committee which date shall be no
later than 15 days preceding January 1 of the calendar year in which
the cash bonus would otherwise be
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paid. A Stock Option shall be granted to each Employee who makes such
an irrevocable election on the date the waived cash bonus would
otherwise have been paid; provided, however, that with respect to an
Employee who is subject to Section 16 of the Act, if such grant date
is not at least six months and one day from the date of the election,
the grant shall be delayed until the date which is six months and one
day from the date of the election (or the next following business day,
if such date is not a business day). The exercise price per share
shall be determined by the Committee but shall not be less than 50% of
the Fair Market Value of the Shares on the date the Stock Option is
granted. The number of Shares subject to the Stock Option shall be
determined by dividing the amount of the waived cash bonus by the
difference between the Fair Market Value of the Shares on the date the
Stock Option is granted and the exercise price per Stock Option. The
Stock Option shall be granted for a whole number of shares so
determined; the value of any fractional share shall be paid in cash.
An Employee may revoke his election under this Section 5(a)(ii) on a
prospective basis at any time; provided, however, that with respect to
an Employee who is subject to Section 16 of the Act, such revocation
shall only be effective six months and one day following the date of
such revocation.
(iii) Option Term. The term of each Stock Option shall be
fixed by the Committee at the time of grant but shall in no event be
longer than 10 years from the date of grant; provided, however, the
term of the Initial Grants shall be 10 years from the date the Ramco
Transaction is consummated.
(iv) Exercisability; Rights of a Stockholder. Stock Options
shall become vested and exercisable at such time or times, whether or
not in installments, as shall be determined by the Committee at or
after the grant date; provided, however, that (A) Stock Options
granted as part of the Initial Grants shall become vested and
exercisable in equal installments on each of the first, second and
third anniversaries of the consummation of the Ramco Transaction and
(B) Stock Options granted in lieu of a cash bonus shall be exercisable
immediately. The Committee may at any time accelerate the
exercisability of all or any portion of any Stock Option. An optionee
shall have the rights of a stockholder only as to Shares acquired upon
the exercise of a Stock Option and not as to unexercised Stock
Options.
(v) Method of Exercise.
(A) Stock Options may be exercised in whole or in part,
by giving written notice of exercise to the Secretary of the Company
(or its delegate), specifying the number of
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shares to be purchased and payment in full of the purchase price. A
copy of such notice shall be delivered at the same time to the
Operating Partnership if the optionee is an Employee of the Operating
Partnership or an Operating Partnership Subsidiary, and to the
Management Company if the optionee is an Employee of the Management
Company or a Management Company Subsidiary. The delivery of
certificates representing the shares of Stock to be purchased pursuant
to the exercise of a Stock Option will be contingent upon receipt by
the Company of the full purchase price for such shares and the
fulfillment of any other requirements contained in the Stock Option
agreement or applicable provisions of laws.
(B) Payment of the purchase price may be made by one or
more of the following methods:
(1) In cash, by certified or bank check or other
instrument acceptable to the Committee;
(2) In the form of Shares that are not then
subject to restrictions under any Employer plan and that have
been held by the optionee for at least six months, if
permitted by the Committee in its discretion. Such
surrendered Shares shall be valued at Fair Market Value on the
exercise date; or
(3) By the optionee delivering a properly
executed exercise notice together with irrevocable
instructions to a broker to promptly deliver cash or a check
acceptable to the Committee to pay the purchase price;
provided that in the event the optionee chooses to pay the
purchase price as so provided, the optionee and the broker
shall comply with such procedures and enter into such
agreements of indemnity and other agreements as the Committee
shall prescribe as a condition of such payment procedure.
Payment instruments will be received subject to collection.
Such payment of the purchase price shall be made to
(x) the Secretary of the Company (or its delegate) with
respect to an Option of an Employee of the Company or a
Company Subsidiary, (y) the Operating Partnership with respect
to an Option of an Employee of the Operating Partnership or an
Operating Partnership Subsidiary, and (z) the Management
Company with respect to an Option of an Employee of the
Management Company or a Management Company Subsidiary.
(C) If the Stock Option being exercised is one granted to
an Employee of the Company or a Company Subsidiary, the
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Company shall sell such Shares to the optionee in return for the purchase price
paid to it by the optionee.
(D) If the Stock Option being exercised is one granted to
an Employee of the Operating Partnership or an Operating Partnership
Subsidiary, as soon as practicable after the Operating Partnership
receives payment of the purchase price pursuant to Section 5(a)(v)(B):
(1) the Company shall sell to the Operating
Partnership and the Operating Partnership shall purchase the
number of Shares for which such Option is being exercised for
an aggregate purchase price equal to the product of (x) such
number of Shares multiplied by (y) the Fair Market Value of a
Share on the date of the exercise; and
(2) The Operating Partnership shall sell such
Shares to the optionee in return for the purchase price paid
to it by the optionee.
(E) If the Stock Option being exercised is one granted to
an Employee of the Management Company or a Management Company
Subsidiary, as soon as practicable after the Management Company
receives payment of the purchase price pursuant to Section 5(a)(v)(B):
(1) the Company shall sell to the Management
Company and the Management Company shall purchase the number
of Shares for which such Option is being exercised for an
aggregate purchase price equal to the product of (x) such
number of Shares multiplied by (y) the Fair Market Value of a
Share on the date of the exercise; and
(2) the Management Company shall sell such Shares
to the optionee in return for the purchase price paid to it by
the optionee.
(vi) Non-Transferability of Options. No Stock Option shall
be transferable by the optionee otherwise than by will or by the laws
of descent and distribution and all Stock Options shall be
exercisable, during the optionee's lifetime, only by the optionee.
Notwithstanding the foregoing, the Committee may provide in an Option
agreement that the optionee may transfer, without consideration for
the transfer, his Stock 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.
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(vii) Termination of Employment by Reason of Death. Upon an
optionee's Termination of Employment by reason of death, any Stock
Option held by him shall become fully exercisable and may thereafter
be exercised (in whole or in part) by the legal representative or
legatee of the optionee, for a period of one year (or such longer
period as the Committee shall specify at any time) from the date of
death, or until the expiration of the stated term of the Option, if
earlier, at which time all rights of the optionee's legal
representative or legatee in such Stock Option shall terminate.
(viii) Termination of Employment by Reason of Disability.
(A) Any Stock Option held by an optionee whose
Termination of Employment is by reason of Disability shall become
fully exercisable and may thereafter be exercised (in whole or in
part), for a period of one year (or such longer period as the
Committee shall specify at any time) from the date of such Termination
of Employment, or until the expiration of the stated term of the
Option, if earlier, at which time all of the optionee's rights in such
Stock Option shall terminate.
(B) Except as otherwise provided by the Committee at the
time of grant, the death of an optionee during a period provided in
this Section 5(a)(viii) for the exercise of a Stock Option shall
extend such period for six additional months, subject to termination
on the expiration of the stated term of the Option, if earlier.
(ix) Termination of Employment by Reason of Retirement.
(A) Any Stock Option held by an optionee whose
Termination of Employment is by reason of Retirement may thereafter be
exercised, to the extent it was exercisable at the time of such
termination, for a period of five years (or such longer period as the
Committee shall specify at any time) from the date of such termination
of employment, or until the expiration of the stated term of the
Option, if earlier, at which time all of the optionee's rights in such
Stock Option shall terminate.
(B) Except as otherwise provided by the Committee at the
time of grant, the death of an optionee during a period provided in
this Section 5(a)(ix) for the exercise of a Stock Option shall extend
such period for six additional months, subject to termination on the
expiration of the stated term of the Option, if earlier.
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(x) Termination of Employment for Cause. If any optionee's
Termination of Employment is for Cause, any Stock Option held by such
optionee, including any Stock Option that is immediately exercisable
at the time of such termination, shall immediately terminate and be of
no further force and effect; provided, however, that the Committee
may, in its sole discretion, provide that such Stock Option can be
exercised for a period of up to 30 days from the date of Termination
of Employment or until the expiration of the stated term of the
Option, if earlier.
(xi) Other Termination of Employment. Unless otherwise
determined by the Committee, and except as provided in any written
employment agreement between the optionee and any Employer if an
optionee's Termination of Employment is for any reason other than
death, Disability, Retirement, or for Cause, any Stock Option held by
such optionee may thereafter be exercised, to the extent it was
exercisable on the date of Termination of Employment, for one year (or
such other period as the Committee shall specify at any time) from the
date of Termination of Employment or until the expiration of the
stated term of the Option, if earlier, at which time all of the
optionee's rights in such Stock Option shall terminate.
(xii) Form of Settlement. Shares issued upon exercise of a
Stock Option shall be free of all restrictions under the Plan, except
as otherwise provided in this Plan.
(b) Reload Options. At the discretion of the Committee, Options
granted under Section 5(a) may include a so-called "reload" feature pursuant to
which an optionee exercising an Option by the delivery of a number of Shares in
accordance with Section 5(a)(v)(B)(2) hereof would automatically be granted an
additional Option (with an exercise price equal to the Fair Market Value of the
Shares on the date the additional Option is granted and with the same
expiration date as the original Option being exercised, and with such other
terms as the Committee may provide) to purchase that number of Shares equal to
the number delivered to exercise the original Option.
SECTION 6. TAX WITHHOLDING
(a) Payment by Participant. The Company and any other Employer
shall have the right to require that each optionee shall, no later than the
date as of which the value of an Award received thereunder first becomes
includible in the gross income of the optionee for Federal income tax purposes,
pay to the Company or the Employer, or make arrangement satisfactory to the
Company or the Employer regarding payment of, any Federal, state, or local
taxes of any kind required by law to be withheld with respect to such income.
The Company and the other Employers
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shall, to the extent permitted by law, have the right to deduct any such taxes
from any payment of any kind otherwise due to the participant.
(b) Payment in Shares. If withholding is required by the Company
or any other Employer, an optionee may elect to have such tax withholding
obligation satisfied, in whole or in part, by (i) authorizing the Employer to
withhold from Shares to be issued pursuant to any Award a number of shares with
an aggregate Fair Market Value (as of the date the withholding is effected)
that would satisfy the withholding amount due, or (ii) transferring to the
Employer Shares owned by the optionee with an aggregate Fair Market Value (as
of the date the withholding is effected) that would satisfy the withholding
amount due. With respect to any optionee who is subject to Section 16 of the
Act, the following additional restrictions shall apply:
(A) the election to satisfy tax withholding obligations
relating to an Award in the manner permitted by this Section 6(b)
shall be made either (1) during the period beginning on the third
business day following the date of release of quarterly or annual
summary statements of revenues of the Company and ending on the
twelfth business day following such date, or (2) at least six months
prior to the date as of which the receipt of such an Award first
becomes a taxable event for Federal income tax purposes;
(B) such election shall be irrevocable;
(C) such election shall be subject to the consent or
disapproval of the Committee; and
(D) the Shares withheld to satisfy tax withholding must
pertain to an Award which has been held by the optionee for at least
six months from the date of grant of the Award.
SECTION 7. TRANSFER, LEAVE OF ABSENCE, ETC.
For purposes of the Plan, the following events shall not be deemed a
Termination of Employment:
(a) a transfer to the employment of another Employer, or
(b) an approved leave of absence for military service or sickness,
or for any other purpose approved by the Employer, if the Employee's right to
re-employment is guaranteed either by a statute or by contract or under the
policy pursuant to which the leave of absence was granted or if the Committee
otherwise so provides in writing.
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SECTION 8. AMENDMENTS AND TERMINATION
The Board may, at any time, amend or discontinue the Plan and the
Committee may, at any time, amend or cancel any outstanding Award (or provide
substitute Awards at the same or reduced exercise or purchase price or with no
exercise or purchase price, but such price, if any, must satisfy the
requirements which would apply to the substitute or amended Award if it were
then initially granted under this Plan) for the purpose of satisfying changes
in law or for any other lawful purpose, but no such action shall adversely
affect rights under any outstanding Award without the holder's consent. To the
extent required by the Act to ensure that Options granted under the Plan are
exempt under Rule 16b-3 promulgated under the Act and can qualify as
performance-related compensation for purposes of Section 162(m) of the Code,
Plan amendments shall be subject to approval by the Company's shareholders.
SECTION 9. CHANGE OF CONTROL PROVISIONS
Upon the occurrence of a Change of Control as defined in this Section
9:
(a) Each outstanding Stock Option shall automatically become fully
exercisable notwithstanding any provision to the contrary herein. Unless
provision is made in connection with the Change in Control for the assumption
of Stock Options theretofore granted, or the substitution of such Stock Options
with new options of the successor entity, with appropriate adjustment as to the
number and kind of shares and the per share exercise prices, each optionee who
has not had a Termination of Employment holding an outstanding Stock Option
shall receive payment from the Company in an amount equal to the excess of the
Fair Market Value per share as of the date the Change of Control occurred over
the applicable exercise price multiplied by the number of Shares covered by the
Stock Option within 30 days after the occurrence of the Change of Control.
(b) "Change of Control" shall mean the occurrence of any one of
the following events:
(i) any "person," as such term is used in Sections 13(d)
and 14(d) of the Act (other than the Company, any of its Subsidiaries,
any trustee, fiduciary or other person or entity holding securities
under any employee benefit plan of the Company or any of its
Subsidiaries), together with all "affiliates" and "associates" (as
such terms are defined in Rule 12b-2 under the Act) of such person,
shall become the "beneficial owner" (as such term is defined in Rule
13d-3 under the Act), directly or indirectly, of securities of the
Company representing 40% or more of either (A) the combined voting
power of the Company's then outstanding securities
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having the right to vote in an election of the Company's Board of
Trustees ("Voting Securities") or (B) the then outstanding Shares of
the Company (in either such case other than as a result of acquisition
of securities directly from the Company); or
(ii) persons who, as of the Effective Date of the Plan,
constitute the Company's Board of Trustees (the "Incumbent Trustees")
cease for any reason, including, without limitation, as a result of a
tender offer, proxy contest, merger or similar transaction, to
constitute at least a majority of the Board, provided that any person
becoming a director of the Company subsequent to the Effective Date
whose election or nomination for election was approved by a vote of at
least a majority of the Incumbent Trustees shall, for purposes of this
Plan, be considered an Incumbent Trustee; or
(iii) the shareholders of the Company shall approve (A) any
consolidation or merger of the Company or any Subsidiary where the
shareholders of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger,
beneficially own (as such term is defined in Rule 13d-3 under the
Act), directly or indirectly, shares representing in the aggregate 50%
of the voting shares of the corporation issuing cash or securities in
the consolidation or merger (or of its ultimate parent corporation, if
any), (B) any sale, lease, exchange or other transfer (in one
transaction or a series of transactions contemplated or arranged by
any party as a single plan) of all or substantially all of the assets
of the Company or (C) any plan or proposal for the liquidation or
dissolution of the Company.
Notwithstanding the foregoing, a "Change of Control" shall not be
deemed to have occurred for purposes of the foregoing clause (i) solely as the
result of an acquisition of securities by the Company which, by reducing the
number of shares of Stock of other Voting Securities outstanding, increases (x)
the proportionate number of Shares beneficially owned by any person to 40% or
more of the Shares then outstanding or (y) the proportionate voting power
represented by the Voting Securities beneficially owned by any person to 40% or
more of the combined voting power of all then outstanding Voting Securities;
provided, however, that if any person referred to in clause (x) or (y) of this
sentence shall thereafter become the beneficial owner of any additional Shares
or other Voting Securities (other than pursuant to a share split, stock
dividend, or similar transaction), then a "Change of Control" shall be deemed
to have occurred for purposes of the foregoing clause (i).
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SECTION 10. GENERAL PROVISIONS
(a) No Distribution; Compliance with Legal Requirements. The
Committee may require each person acquiring Shares pursuant to an Award to
represent to and agree with the Company in writing that such person is
acquiring the shares without a view to distribution thereof.
No Shares shall be issued pursuant to an Award until all applicable
securities law and other legal and stock exchange requirements have been
satisfied. The Committee may require the placing of such stop-orders and
restrictive legends on certificates for Awards as it deems appropriate.
(b) Ownership Restrictions.
No Shares shall be issued pursuant to an Award if, in the sole and
absolute discretion of the Committee, such issuance would likely result in any
of the following:
(i) The recipient's ownership of Shares being in violation
of the Share Ownership Limit; or
(ii) Income to the Company that could impair the Company's
status as a real estate investment trust, within the meaning of
Sections 856 through 860 of the Code.
Notwithstanding any other provision of the Plan, no person shall have
any rights under this Plan to acquire Shares which would otherwise be
prohibited under the Company's Declaration of Trust.
(c) Delivery of Stock Certificates. Delivery of share
certificates to optionees under this Plan shall be deemed effected for all
purposes when the Company or a stock transfer agent of the Company shall have
delivered such certificates in the United States mail, addressed to the
optionee, at the optionee's last known address on file with the Company.
(d) Other Compensation Arrangement; No Employment Rights. Nothing
contained in this Plan shall prevent the Board or any of the Employers from
adopting other or additional compensation arrangements, including trusts,
subject to shareholder approval if such approval is required; and such
arrangements may be either generally applicable or applicable only in specific
cases. The adoption of the Plan and the grant of Awards do not confer upon any
Employee any right to continued employment with the Company or any other
Employer.
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SECTION 11. EFFECTIVE DATE OF PLAN
The Plan shall become effective upon (i) adoption by the Board, (ii)
approval by the holders of a majority of the shares of Shares of the Company
present or represented and entitled to vote at a meeting of shareholders and
(iii) consummation of the Ramco Transaction (the "Effective Date").
SECTION 12. GOVERNING LAW
This Plan shall be governed by Massachusetts law except to the extent
such law is preempted by federal law.
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EXHIBIT A
<TABLE>
<CAPTION>
Employee Option Grant
-------- ------------
<S> <C>
Dennis Gershenson.............................................. 24,000
Bruce Gershenson............................................... 24,000
Richard Gershenson............................................. 24,000
Joel Gershenson................................................ 24,000
Michael A. Ward................................................ 24,000
</TABLE>
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Exhibit F
EMPLOYMENT AGREEMENT
This Employment Agreement, dated as of ________, 1995, is entered into
between RAMCO-GERSHENSON PROPERTIES TRUST, a Maryland business trust (the
"Trust"), and ________________ ("Executive"). Capitalized terms used but not
otherwise defined in this Agreement shall have the meanings set forth in the
Master Agreement dated as of April __, 1995 among RPS Realty Trust,
Ramco-Gershenson, Inc., the Ramco Principals, the Operating Partnership and the
Ramco Contributing Parties.
RECITALS
A. The Trust is a business trust intended to be qualified and to operate as
a real estate investment trust under the Internal Revenue Code of 1986, as
amended.
B. The Trust is the general partner of Ramco-Gershenson Properties, L.P., a
Delaware limited partnership (the "Operating Partnership"), which has, among
other things, acquired various shopping center properties from Subsidiaries of
the Trust and partnerships managed and controlled by Ramco-Gershenson, Inc.
("Ramco Management") or its affiliates.
C. Executive is one of the five principals of Ramco Management (the "Ramco
Principals"). The Trust wishes to employ Executive and the other Ramco
Principals, and Executive wishes to be employed by the Trust, on the terms and
conditions set forth below.
THEREFORE, the parties agree as follows:
1. EMPLOYMENT DUTIES. During the Term (as defined in paragraph 2 below),
the Trust will employ Executive as its _____________. Except as permitted by
Executive's Noncompetition Agreement with the Trust, Executive will devote
substantially all of his business time and attention to the performance of his
duties under this Agreement. Executive initially shall have the duties, rights
and responsibilities normally associated with his position with the Trust
consistent with the Declaration of Trust of the Trust, together with such other
reasonable duties relating to the operation of the business of the Trust and its
affiliates as may be assigned to him from time to time by the Board of Trustees
of the Trust (the "Board") or may otherwise be provided for in such Bylaws. If
the Trust shall so request, Executive shall become and shall, at any time during
the term of this Agreement as the Trust shall so request, act as a trustee of
the Trust and/or as an officer and/or director of any of the Subsidiaries of the
Trust as they may now exist or may be established by the Trust in the future
without any compensation other than that provided for in paragraph 3.1
- --------
1. Joel Gershenson - Chairman; Dennis Gershenson - President and Chief
Executive Officer; Richard Gershenson - Executive Vice President and
Secretary; Bruce Gershenson - Executive Vice President and Treasurer;
Michael Ward - Executive Vice
(continued...)
<PAGE> 267
2. TERM. The term of Executive's employment under this Agreement (the
"Term") will begin on the date of this Agreement and will continue, subject to
the termination provisions set forth in paragraph 5 below, until the third
anniversary of the date hereof; provided that, if the Board has considered
whether or not to extend the Term at a meeting held not more than 90 days or
less than 30 days prior to the expiration of the Term, the Term will
automatically be extended for one year unless either the Trust or Executive
gives written notice of non-extension to the other at least 20 days prior to the
expiration of the Term.
3. SALARY AND BONUS.
a. Salary. During each year of the Term, Executive will receive a salary
at the annual rate of $100,000, which salary will be subject to increase as set
forth below (as so increased, the "Base Salary"). The Compensation Committee of
the Trust's Board of Trustees (the "Committee") will review Executive's Base
Salary on an annual basis, and the Committee, upon such review and in its sole
discretion, may increase or decrease the Base Salary by an amount which the
Committee deems appropriate in light of the Trust's and Executive's performance
during the period covered by such review; provided, however, that the Base
Salary will not be reduced below $100,000 per annum. The Base Salary will be
payable to Executive in accordance with the Trust's standard payroll practices.
b. Bonus. In addition to the Base Salary, the Trust will pay to
Executive performance-based bonus compensation for each fiscal year of the
Trust, not later than 60 days following the end of each fiscal year or the
expiration of the Term as a result of the nonextension thereof or as otherwise
specified in paragraph 6 below, as the case may be, prorated on a per diem basis
for partial fiscal years, as determined by the Committee but not less than that
determined and calculated in accordance with the formula set forth on Exhibit
"A" hereto.
4. FRINGE BENEFITS. In addition to the other compensation payable pursuant
to this Agreement, during the Term:
a. Standard Benefits. Executive will be entitled to receive such fringe
benefits and perquisites, including medical, dental, disability and life
insurance, as are generally made available from time to time to management
employees and Executives of the Trust and as was provided to Executive by Ramco
Management on December 31, 1994, and to participate in any pension,
profit-sharing, stock option or similar plan or program established from time to
time by the Trust for the benefit of its employees.
- --------------
1. (...continued)
President and Chief Operating Officer.
2
<PAGE> 268
b. Vacation and Sick Leave. Executive will be entitled to such periods
of paid vacation and sick leave allowance each year (not less than four weeks)
that are consistent with the Trust's vacation and sick leave policy for senior
management.
c. Business Expenses. The Trust will pay or reimburse Executive for all
business-related expenses incurred by Executive in the course of his performance
of duties under this Agreement, subject to the procedures established by the
Trust from time to time with respect to incurrence, substantiation,
reasonableness and approval. The business-related expenses to be paid for or
reimbursed by the Trust hereunder will include those expenses paid for or
reimbursed by Ramco Management for the benefit of Executive for the year ending
December 31, 1994, including professional licensing and association fees and
dues, professional journal subscriptions and errors and omissions insurance
coverage.
d. Stock Options. Executive shall be entitled to participate in employee
stock option plans from time to time established for the benefit of employees of
the Trust in accordance with the terms and conditions of such plans. On the date
hereof, Executive shall receive a grant of 24,000 stock options pursuant to the
Trust's 1995 Stock Option Plan, which options shall vest in three equal annual
installments on the first, second and third anniversaries of the date hereof.
The option exercise price with respect to the stock options granted on the date
hereof shall be equal to the OPV per share. None of the terms of any such option
shall be modified without Executive's consent. Within 60 days after the date
hereof, the Trust shall file a registration statement on Form S-8 registering
under the Securities Act of 1933, as amended (the "Securities Act") the shares
of beneficial interest of the Trust sold to Executive upon the exercise of the
options granted to Executive pursuant to this paragraph 4(d) (collectively, the
"Registrable Securities"). The Trust shall use commercially reasonable efforts
to maintain the effectiveness of such registration statement under the
Securities Act until the earlier of (i) the date the Registrable Securities are
no longer eligible for registration on Form S-8 or (ii) the date the Registrable
Securities are permitted to be disposed of pursuant to Rule 144(k) (or any
successor rule) under the Securities Act.
5. TERMINATION OF EMPLOYMENT.
a. Death and Disability. Executive's employment under this Agreement
will terminate immediately upon his death and upon 30 days' prior written notice
given by the Trust in the event Executive is determined to be "permanently
disabled" (as defined below).
b. For Cause. The Trust may terminate Executive's employment under this
Agreement for "Cause" (as defined below), upon providing Executive 30 days'
prior written notice of termination, which notice will describe in detail the
basis of such termination and will become effective on the 30th day after
Executive's receipt thereof unless Executive (i) cures the alleged violation or
other circumstance which was the basis of such termination within such 30- day
notice period or (ii) sends, within such 30-day notice period, written notice to
the Board of Trustees of the Trust disputing in good faith the existence of
Cause and requesting arbitration of such dispute pursuant to paragraph 8 below.
During the pendency of the arbitration, Executive
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will continue to receive all compensation and benefits to which he is entitled
hereunder. If the Trust is not successful in obtaining a determination by the
arbitrators that there was Cause for termination, the Trust will pay Executive's
reasonable expenses, including, without limitation, reasonable attorneys' fees
and disbursements, in connection with such dispute resolution.
c. For Good Reason. Executive may terminate his employment under this
Agreement for "Good Reason" (as defined below) upon providing the Trust 30 days'
prior written notice of termination, which notice will detail the basis of such
termination and will become effective on the 30th day after the Trust's receipt
thereof unless the Trust cures the alleged violation or other circumstance which
was the basis of such termination within such 30-day notice period.
d. Definitions. For purposes of this Agreement:
(i) Executive will be deemed "permanently disabled" if he
becomes unable to discharge his normal duties as contemplated under this
Agreement for more than six consecutive months as a result of incapacity
due to mental or physical illness by a physician acceptable to Executive
and the Trust and paid by the Trust, whose determination will be final
and binding. If Executive and the Trust are unable to agree on a
physician, Executive and the Trust will each choose one physician who
will mutually choose the third physician, whose determination will be
final and binding.
(ii) "Cause" means either (A) a material breach by Executive of
any material provisions of this Agreement or of the Noncompetition
Agreement, but only if, after notice provided in subparagraph (b) above,
Executive fails to cure such breach or, if such breach is not subject to
cure, fails on an on-going basis thereafter to comply with the
provisions of this Agreement or of the Noncompetition Agreement, as the
case may be, with respect to which he was in such breach; (B) action by
Executive constituting willful malfeasance or gross negligence, having a
material adverse effect on the Trust; (C) an act of fraud,
misappropriation of funds or embezzlement by Executive in connection
with his employment hereunder; or (D) Executive is convicted of, pleads
guilty to or confesses to any felony.
(iii) "Good Reason" means the occurrence of any of the following,
without the prior written consent of Executive: (A) any substantial
diminution of duties, responsibilities or status, or other imposition by
the Trust of unreasonable requirements or working conditions on
Executive, which are not withdrawn or corrected within a 30-day period
following notice by Executive to the Trust of such diminution or
imposition; (B) a material breach by the Trust of any of its material
obligations under this Agreement, but only if (x) after expiration of
the 30-day notice period provided in subparagraph (c) above, the Trust
fails to cure such breach or (y) notwithstanding such cure, the Trust
willfully and repeatedly
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breaches its obligations under this Agreement; (C) a relocation of the
Trust's principal executive offices or of Executive's principal place of
employment to a location more than 25 miles from Southfield, Michigan;
(D) if, after any election of Trustees, at least two Ramco Principals
are not members of the Board or the Ramco Principals would constitute
less than 20% of the members of the Board (provided that at least two of
the Ramco Principals are ready, willing and able to serve on the Board);
or (E) a "change of control" as defined below. Notwithstanding the
foregoing, if at any time after the date of this Agreement the Ramco
Principals own shares or OP Units convertible into less than 15% of the
issued and outstanding Shares of the Trust, clause (D) shall be
inapplicable and shall not be deemed "good reason" for termination of
employment. Executive will be deemed not to have consented to any
proposal resulting in any of the foregoing changes unless he will have
given written notice of his consent thereto to the Board of Trustees of
the Trust within fifteen (15) days after receipt of a written proposal
describing the change. If Executive will not give such consent, the
Trust will have the opportunity to withdraw such proposed change by
written notice to Executive given within 15 days after expiration of the
foregoing 15-day period.
(iv) A "change in control" shall occur if any person or group of
commonly controlled persons, other than the Ramco Principals or their
affiliates, owns or controls, directly or indirectly, more than
twenty-five percent (25%) of the voting control or value of the capital
stock of the Trust, or of securities convertible into or exchangeable
for capital stock of the Trust.
6. BENEFITS UPON TERMINATION.
a. Termination upon Death or Permanent Disability. Upon termination of
Executive's employment under this Agreement resulting from his death or
permanent disability, the Trust will remain obligated to pay to Executive or his
legal representatives his Base Salary and bonus, as provided in paragraph 3
above, for an additional period equal to 12 months from the effective date of
termination (such additional period being referred to in this Agreement as the
"Severance Period"). In the event of a termination upon Executive's permanent
disability, Executive will also remain entitled to receive, during the Severance
Period, those fringe benefits specified in paragraph 4 above, including coverage
under all insurance programs and plans. The payment of such Base Salary and
bonus will be made during the Severance Period at the same times as such amounts
would have been paid pursuant to paragraph 3 above had Executive's employment
not have been terminated and had the Term expired at the end of the Severance
Period.
b. Termination with Cause or Resignation. Upon termination of
Executive's employment by the Trust pursuant to paragraph 5(b) above or a
voluntary resignation by Executive (other than for Good Reason pursuant to
paragraph 5(c) above), the Trust will remain obligated to pay Executive only the
unpaid portion of his Base Salary, bonus and benefits
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(including the value of any untaken vacation time to the extent Executive has,
during the year in which such termination occurs, taken less vacation time than
permitted to him hereunder), to the extent accrued through the effective date of
termination. Any amount due under this subparagraph will be payable within 30
days after the date of termination.
c. Termination without Cause or for Good Reason. Upon termination of
Executive's employment (x) by the Trust other than for Cause or upon Executive's
death or permanent disability or (y) by Executive for Good Reason, Executive
will be entitled to the benefits provided below:
(i) the Trust will pay Executive his Base Salary through the
date of termination;
(ii) the Trust will pay as severance pay to Executive, not later
than the 30th day following the date of termination, a lump sum
severance payment (the "Severance Payment") equal to the greater of (x)
the aggregate of all compensation due to Executive hereunder during the
balance of the Term, assuming that the annual bonuses payable to
Executive during such period will equal the average of the annual
bonuses paid to Executive under this Agreement prior to termination of
employment, or (y) 2.99 times (or, after the second anniversary of the
date of this Agreement, 1.99 times) the "base amount" within the meaning
of Sections 280G(b)(3) and 280G(d) of the Internal Revenue Code of 1986,
as amended (the "Code"), and any applicable temporary or final
regulations promulgated thereunder, or its equivalent as provided in any
successor statute or regulation. If Section 280G of the Code (and any
successor provisions thereto) is repealed or otherwise inapplicable,
then the Severance Payment will equal 2.99 (or, after the second
anniversary of this agreement, 1.99 times) times the average of
Executive's annual compensation for both complete and partial calendar
years during so much of the five calendar year period preceding the
calendar year in which the termination occurs during which Executive was
so employed, determined by analyzing any compensation (other than
non-recurring items) includable in Executive's gross income for any
partial calendar year and then adding such non-recurring items to such
annualized compensation. Compensation payable to Executive by the Trust
will include every type and form of compensation includable in
Executive's gross income in respect of his employment by the Trust,
including compensation income recognized as a result of Executive's
exercise of stock options or sale of the stock so acquired, except to
the extent otherwise provided in Section 280G of the Code and any
temporary or final regulations promulgated thereunder;
(iii) if in the opinion of tax counsel elected by Executive and
reasonably acceptable to the Trust, any portion of any payment made to
Executive, including without limitation, the Severance Payment
constitutes an excess "parachute payment" within the meaning of Section
280G(b)(1) of the Code, the Trust will
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pay Executive an additional amount (the "Additional Amount") equal to
the sum of (i) all taxes payable by Executive under Section 4999 of the
Code with respect to the Severance Payment and the Additional Amount,
plus (ii) all federal, state or local income taxes payable by Executive
with respect to the Additional Amount; and
(iv) for the duration of the Term, those fringe benefits
specified in paragraph 4(a) above, including coverage under all
insurance programs and plans.
d. No Mitigation. Executive will not be required to mitigate the amount
of any payment provided for in this paragraph 6 by seeking other employment or
otherwise, nor will the amount of any payment or benefit provided for in this
paragraph 6 be reduced by any compensation earned by him as the result of
employment by another employer or by retirement benefits after the date of
termination, or otherwise.
e. Expiration of this Agreement. In the event the Term of this Agreement
expires without having otherwise been previously terminated pursuant to
paragraph 5 above or by the Trust without cause, Executive will not be entitled
to any severance compensation whatsoever under this paragraph 6.
7. INDEMNIFICATION. To the full extent permitted by applicable law,
Executive shall be indemnified and held harmless by the Trust against any and
all judgments, penalties, fines, amounts paid in settlement, and other
reasonable expenses (including, without limitation, reasonable attorneys' fees
and disbursements) actually incurred by Executive in connection with any
threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative, investigative or other) for any action or omission in
his capacity as a trustee, officer or employee of the Trust.
Indemnification under this paragraph 7 shall be in addition to, and not in
substitution of, any other indemnification by the Trust of its officers and
trustees. Expenses incurred by Executive in defending an action, suit or
proceeding for which he claims the right to be indemnified pursuant to this
paragraph 7 shall be paid by the Trust in advance of the final disposition of
such action, suit or proceeding upon the Trust's receipt of (x) a written
affirmation by Executive of his good faith belief that the standard of conduct
necessary for his indemnification hereunder and under the provisions of Section
8-301(15) of the Maryland Real Estate Investment Trust Law, as such provision
may be amended or superseded from time to time, has been met and (y) a written
undertaking by or on behalf of Executive to repay the amount advanced if it
shall ultimately be determined that Executive engaged in conduct which precludes
indemnification under the provisions of Section 8-301(15) of the Maryland Real
Estate Investment Trust Law, as such provision may be amended or superseded from
time to time. Such written undertaking in clause (y) shall be accepted by the
Trust without security therefor and without reference to the financial ability
of Executive to make repayment thereunder. The Trust shall use commercially
reasonable efforts to maintain in effect for the Term of this Agreement a
directors' and officers' liability insurance policy, with a policy limit of at
least $10,000,000,
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subject to customary exclusions, with respect to claims made against officers
and directors of the Trust; provided, however, the Trust shall be relieved of
this obligation to maintain directors' and officers' liability insurance if, in
the good faith judgment of the Trust, it cannot be obtained at a reasonable
cost.
8. ARBITRATION. The parties hereto will endeavor to resolve in good faith
any controversy, disagreement or claim arising between them, whether as to the
interpretation, performance or operation of this Agreement or any rights or
obligations hereunder. If they are unable to do so, any such controversy,
disagreement or claim will be submitted to binding arbitration, for final
resolution without appeal, by either party giving written notice to the other of
the existence of a dispute which it desires to have arbitrated. The arbitration
will be conducted in Detroit, Michigan by a panel of three (3) arbitrators and
will be held in accordance with the rules of the American Arbitration
Association. Of the three arbitrators, one will be selected by the Trust, one
will be selected by Executive and the third will be selected by the two
arbitrators so selected. Each party will notify the other party of the
arbitrator selected by him or it within fifteen (15) days after the giving of
the written notice referred to in this paragraph 8. The decision and award of
the arbitrators must be in writing and will be final and binding upon the
parties hereto, with the same effect as an arbitration pursuant to Michigan
Compiled Laws Annotated Section 600.5001. Judgment upon the award may be
entered in any court having jurisdiction thereof, or application may be made
to such court for a judicial acceptance of the award and an order of
enforcement, as the case may be. The expenses of arbitration will be borne in
accordance with the determination of the arbitrators with respect thereto,
except as otherwise specified in paragraph 5(b) above. Pending a decision by
the arbitrators with respect to the dispute or difference undergoing
arbitration, all other obligations of the parties will continue as stipulated
herein, and all monies not directly involved in such dispute or difference
will be paid when due.
9. MISCELLANEOUS.
a. Executive represents and warrants that he is not a party to any
agreement, contract or understanding, whether employment or otherwise, which
would restrict or prohibit him from undertaking or performing employment in
accordance with the terms and conditions of this Agreement.
b. The provisions of this Agreement are severable and if any one or more
provisions may be determined to be illegal or otherwise unenforceable, in whole
or in part, the remaining provisions and any partially unenforceable provision
to the extent enforceable in any jurisdiction will remain binding and
enforceable.
c. The rights and obligations of the Trust under this Agreement inure to
the benefit of, and will be binding on, the Trust and its successors and
permitted assigns, and the rights and obligations (other than obligations to
perform services) of Executive under this Agreement will inure to the benefit
of, and will be binding upon, Executive and his heirs, personal representatives
and permitted assigns; provided, however, Executive shall not be entitled
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to assign or delegate any of his rights and obligations under this Agreement
without the prior written consent of the Trust; provided, further, that the
Trust shall not have the right to assign or delegate any of its rights or
obligations under this Agreement except to a corporation, partnership or other
business entity that is, directly or indirectly, controlled by the Trust.
d. Any notice to be given under this Agreement will be personally
delivered in writing or will have been deemed duly given when received after it
is posted in the United States mail, postage prepaid, registered or certified,
return receipt requested, and if mailed to the Trust, will be addressed to its
principal place of business, attention: Secretary, and if mailed to Executive,
will be addressed to him at his home address last known on the records of the
Trust or at such other address or addresses as either the Trust or Executive may
hereafter designate in writing to the other.
e. The failure of either party to enforce any provision or provisions of
this Agreement will not in any way be construed as a waiver of any such
provision or provisions as to any future violations thereof, nor prevent that
party thereafter from enforcing each and every other provision of this
Agreement. The rights granted the parties herein are cumulative and the waiver
of any single remedy will not constitute a waiver of such party's right to
assert all other legal remedies available to it under the circumstances.
f. This Agreement will be governed by and construed according to the
laws of the State of Michigan.
g. Captions and paragraph headings used herein are for convenience and
are not a part of this Agreement and will not be used in construing it.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: _____________________________
Its:_________________________
_________________________________
"Executive"
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EXHIBIT A
Bonus Calculation
The bonus compensation payable to Executive pursuant to paragraph 3(b),
for each year of the Agreement, will equal the following:
(a) if the Trust's Funds From Operation per outstanding Common Share, on
an annualized basis, for the year for which the bonus is to be paid increase
less than 5% from the Company's Funds From Operation per outstanding Common
Share for the previous year, then 0%;
(b) if the Trust's Funds From Operation per outstanding Common Share, on
an annualized basis, for the year for which the bonus is to be paid increase at
least 5% but less than 7% from the Trust's Funds From Operation per outstanding
Common Share for the previous year, then 15% of Executive's Base Salary for the
year for which the bonus is to be paid;
(c) if the Trust's Funds From Operation per outstanding Common Share, on
an annualized basis, for the year for which the bonus is to be paid increase at
least 7% but less than 10% from the Trust's Funds From Operation per outstanding
Common Share for the previous year, then 22.5% of Executive's Base Salary for
the year for which the bonus is to be paid;
(d) if the Trust's Funds From Operation per outstanding Common Share, on
an annualized basis, for the year for which the bonus is to be paid increase at
least 10% but less than 15% from the Trust's Funds From Operation per
outstanding Common Share for the previous year, then 30% of Executive's Base
Salary for the year for which the bonus is to be paid; and
(e) if the Trust's Funds From Operation per outstanding Common Share, on
an annualized basis, for the year for which the bonus is to be paid increase by
15% or more from the Trust's Funds From Operation per outstanding Common Share
for the previous year, then 50% of Executive's Base Salary for the year for
which the bonus is to be paid.
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Exhibit H
Michigan Properties
1. Tel Twelve
2. Ramco Fraser
3. Ramco Lapeer
4. Roseville Plaza
5. Southfield Plaza
6. Ford Sheldon
7. KMW Sterling
8. 28th Street Kentwood
9. Ramco Oakbrook
10. Sterling Mall
11. West Oaks I
12. West Oaks II
13. Ramco Jackson
14. Ramco Lansing
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EXHIBIT I
PLEDGE AGREEMENT
PLEDGE AGREEMENT ("AGREEMENT") dated as of ______________, 1995 among
Ramco-Gershenson Properties Trust, a Maryland business trust (the "TRUST"),
Dennis Gershenson, Joel Gershenson, Bruce Gershenson, Richard Gershenson,
Michael A. Ward and Michael A. Ward U/T/A dated 2/22/77, as amended
(collectively, the "RAMCO PRINCIPALS") and the affiliates of the Ramco
Properties set forth on Schedule 1 (collectively, the "RAMCO CONTRIBUTING
PARTIES").
Reference is made to the Master Agreement (the "MASTER AGREEMENT") dated as
of April __, 1995, among the Trust, Ramco-Gershenson, Inc. and its affiliates
(collectively, "RAMCO"), the Ramco Principals, and Ramco-Gershenson Properties,
L.P., a Delaware limited partnership (the "OPERATING PARTNERSHIP"). Capitalized
terms used in this Agreement and not otherwise defined herein shall have the
meanings ascribed to them in the Master Agreement.
RECITALS:
A. The Trust and the Ramco Principals are entering into this Agreement in
connection with the transactions (the "RAMCO TRANSACTION") effectuated on this
day pursuant to which the Trust, the Ramco Contributing Parties and the Ramco
Principals contributed cash, certain stock in Ramco, certain partnership
interests and certain shopping center properties to the Operating Partnership.
B. As a condition to the Ramco Transaction, the Ramco Principals and the
Ramco Contributing Parties have agreed to execute and deliver to the Trust this
Agreement.
Accordingly, the parties hereby agree as follows:
Section 1. The Pledge.
(a) As collateral security for the full and timely performance of the
obligations and liabilities of the Ramco Principals contained in the Master
Agreement and each Ramco Agreement including, without limitation, the
indemnification obligations set forth in Section 7.4 of the Master Agreement and
Section 20 of each Ramco Agreement (the "SECURED OBLIGATIONS"), each Ramco
Principal hereby transfers, conveys, pledges, hypothecates and delivers to the
Trust and its successors and assigns, and grants to the Trust and its successors
and assigns a security interest in, the following property (collectively
referred to herein as the "PLEDGED COLLATERAL"):
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(i) the number of units of limited partnership interest in the
Operating Partnership ("OP UNITS") issued under the Partnership
Agreement and owned by each Ramco Principal on the date hereof as set
forth on Exhibit A and each additional OP Unit issued or credited to any
Ramco Principal from time to time or otherwise acquired by any Ramco
Principal from time to time (collectively, the "RP PLEDGED OP UNITS");
(ii) the number of shares of beneficial interest of the Trust,
par value $.10 per share ("SHARES"), owned by each Ramco Principal on
the date hereof as set forth on Exhibit B and each additional Share
issued to, purchased or otherwise acquired by any Ramco Principal from
time to time, including, without limitation, any Shares acquired by any
Ramco Principal as a result of any exchange of OP Units for Shares
(collectively the "RP PLEDGED SHARES");
(iii) the limited partnership interests in the Ramco Contributing
Parties owned by the Ramco Principals on the date hereof as set forth on
Exhibit C and each additional partnership interest (whether general or
limited) in the Ramco Contributing Parties issued or credited to any
Ramco Principal from time to time or otherwise acquired by any Ramco
Principal from time to time (collectively, the "PLEDGED LP INTERESTS");
(iv) the general and limited partnership interests in the general
partners of the Ramco Contributing Parties that are partnerships (the
"PARTNERSHIP GP ENTITIES") owned by the Ramco Principals on the date
hereof as set forth on Exhibit D and each additional partnership
interest (whether general or limited) in the Partnership GP Entities
issued or credited to any Ramco Principal from time to time or otherwise
acquired by any Ramco Principal from time to time (collectively, the
"PLEDGED PARTNERSHIP GP INTERESTS");
(v) the Shares of stock (irrespective of class) in the general
partners that are corporations (the "CORPORATE GP ENTITIES") owned by
the Ramco Principals on the date hereof as set forth on Exhibit E and
each additional Share of stock (irrespective of class) in the Corporate
GP Entities issued to, purchased or otherwise acquired by any Ramco
Principal from time to time (collectively, the "PLEDGED CORPORATE GP
STOCK");
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(vi) with respect to each Ramco Contributing Party, the number of
OP Units and Shares owned by such Ramco Contributing Party on the date
hereof multiplied by a fraction, the numerator of which is the number of
such OP Units and Shares allocated directly or indirectly to the Ramco
Principals and their respective Affiliates pursuant to the partnership
agreement of such Ramco Contributing Party (expressed as a decimal
fraction) and the denominator of which is 1 (the "APPLICABLE
PERCENTAGE") as set forth on Exhibit F and each additional OP Unit or
Share issued to, purchased or acquired by such Ramco Contributing Party
multiplied by, with respect to each Ramco Contributing Party, the
Applicable Percentage (collectively, the "RCP PLEDGED UNITS AND
SHARES"), provided, however, if after the date hereof the aggregate
direct or indirect percentage ownership interest of the Ramco Principals
in any Ramco Contributing Party shall increase from the percentage
existing on the date hereof, the Applicable Percentage with respect to
such Ramco Contributing Party shall equal such greater percentage;
(vii) all payments due or to become due to each pledgor arising
out of, as a result of or in connection with such pledgor's ownership of
the RP Pledged OP Units, the RP Pledged Shares, the Pledged LP
Interests, the Pledged Partnership GP Interests, the Pledged Corporate
GP Stock, and the RCP Pledged Units and Shares (collectively, the
"PLEDGED COLLATERAL"), whether as dividends, distributions of cash or
property or otherwise (collectively, the "DISTRIBUTIONS") and all of
such pledgor's rights, whether now existing or hereafter arising or
acquired, to exercise all voting, consensual and other powers of
ownership pertaining to such pledgor's ownership of the Pledged
Collateral (including, without limitation, Pledgor's rights as owner of
the Pledged Collateral to make determinations, to exercise any election
(including, without limitation, election of remedies) or option, to give
or receive any notice, consent, amendment, waiver or approval); and
(viii) all proceeds of any and all of the foregoing and all
increases, substitutions, replacements, additions, and accessions
thereto.
Section 2. Dividends and Other Distributions. So long as no breach of the
Secured Obligations shall have occurred and be continuing (an "EVENT OF
DEFAULT"), all cash distributions and dividends payable in respect of the
Pledged Collateral shall be paid to the relevant pledgor; provided, that all
cash distributions and dividends payable in respect of the Pledged Collateral
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which are determined by the Trust in its reasonable discretion to represent in
whole or in part an extraordinary, liquidating or other distribution in return
of capital shall be paid, to the extent so determined to represent an
extraordinary, liquidating or other distribution in return of capital, to the
Trust and retained by it in a separate interest bearing account as part of the
Pledged Collateral. The Trust shall also be entitled to receive directly, and to
retain as part of the Pledged Collateral to be held and applied in the manner
set forth in this Agreement:
(i) all additional stock, partnership interests or other
securities or property (other than cash) paid or distributed by way of
dividend or otherwise in respect of the Pledged Collateral;
(ii) all additional stock, partnership interests or other
securities or property (including cash) paid or distributed in respect
of the Pledged Collateral by way of stock-split, spin-off, split-up,
reclassification, combination of shares or interests or similar
rearrangement; and
(iii) all additional stock, partnership interests or other
securities or property (including cash) which may be paid in respect of
the Pledged Collateral by reason of any consolidation, merger, exchange
of stock or interests, conveyance of assets, liquidation or similar
corporate or partnership reorganization.
Section 3. Voting Power. So long as no Event of Default exists, the
pledgors shall be entitled to exercise all voting, consensual and other powers
of ownership pertaining to the Pledged Collateral, provided that no vote shall
be cast nor any approval, consent, waiver or ratification given, nor any power
pertaining to the Pledged Collateral exercised, nor any other action taken,
which would violate or be inconsistent with the terms of this Agreement. If an
Event of Default occurs and is continuing, the Trust shall have the sole and
exclusive right to exercise all voting, consensual and other powers of ownership
pertaining to the Pledged Collateral.
Section 4. Events of Default and Remedies.
(a) During any period in which an Event of Default shall have occurred
and be continuing, the Trust shall have the following rights regarding the
Pledged Collateral: (i) the Trust shall have all of the rights and remedies with
respect to the Pledged Collateral of a secured party under the Uniform
Commercial Code, as is in effect from time to time in the State of New York, and
such additional rights and remedies to which a secured party is entitled under
the laws in effect in any jurisdiction where any rights and remedies hereunder
may be asserted, including, without limitation, the right, to the fullest extent
permitted by law, to exercise all voting, and other powers of ownership
pertaining to the Pledged Collateral as if the Trust were the sole and absolute
owner thereof (and the pledgors under this Agreement agree to take all
reasonable actions as may be appropriate to give effect to such rights); (ii)
the Trust in its discretion may,
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in its name or the name of the pledgors or otherwise, demand, sue for, collect
or receive any money or property at any time payable or receivable on account of
or in exchange for any of the Pledged Collateral, but shall be under no
obligation to do so; and (iii) the Trust may, upon 10 business days' written
notice to the pledgors under this Agreement of the time and place, sell, assign
or otherwise dispose of all or any part of the Pledged Collateral, at such place
or places as the Trust deems best, and for cash, credit or future delivery
(without thereby assuming any credit risk), without demand or performance or
further notice of intention to effect such disposition or the time or place
thereof (except such notices which are required by applicable statute and cannot
be waived); and, further, the Trust or anyone else who may be the purchaser, the
lessee, transferee or assignee of any or all of the Pledged Collateral so
disposed of shall thereafter hold the same absolutely free from any claim or
right or whatsoever kind, including any right or equity of redemption (statutory
or otherwise).
The proceeds of each collection, sale or other disposition under this
Section shall be applied in accordance with Section 9 hereof.
The pledgors recognize that, by reason of certain prohibitions contained in
the Securities Act of 1933, as amended (the "SECURITIES ACT"), and applicable
state securities laws ("BLUE SKY LAWS"), the Trust may be compelled, with
respect to any sale of all or any part of the Pledged Collateral, to make sales
of such Pledged Collateral to purchasers who have agreed, among other things, to
acquire the Pledged Collateral for their own account, for investment and not
with a view to the distribution or resale thereof. The pledgors acknowledge that
such sales may be at prices and on terms less favorable to the Trust than those
obtainable through a public sale without such restrictions, and notwithstanding
such circumstances, agree that any such sale shall be deemed to have been made
in a commercially reasonable manner. The pledgors acknowledge and agree that,
subject to compliance with the Securities Act and Blue Sky Laws, under no
circumstances will the Trust be required to register any of the Pledged
Securities under the Securities Act or any Blue Sky Laws.
The pledgors hereby appoint the Trust, effective during the continuance of
an Event of Default, as the pledgors' attorney-in-fact, with full power of
substitution for the purposes specified in, or contemplated by, this Agreement.
Such appointment is irrevocable and coupled with an interest. As
attorney-in-fact, the Trust may (in addition to the actions specified in other
provisions of this Agreement), in the name, place and stead of any pledgor, make
and execute all conveyances, assignments and transfers of the Pledged Collateral
sold pursuant hereto, and such pledgor hereby ratifies and confirms all that the
Trust, as attorney-in-fact, shall do by virtue hereof. Nevertheless, such
pledgor shall, if so requested by the Trust, ratify and confirm any sale or
sales by executing and delivering to the Trust, or to such purchaser or
purchasers, all such instruments as may, in the judgment of the Trust, be
advisable for the purpose.
Section 5. Certain Representations and Warranties. The Ramco Principals,
jointly and severally, represent and warrant to the Trust as follows:
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(i) the pledgors are the legal, record and beneficial owners of,
and have good and marketable title to, the Pledged Collateral, subject
to pledge, claim, lien, security interest, charge, option, restriction
or other encumbrance (a "LIEN") except for (A) the security interest
created by this Agreement and (B) restrictions on transfer under the
Securities Act and Blue Sky Laws;
(ii) the pledgors have full power, authority and legal right to
execute and deliver this Agreement and to pledge the Pledged Collateral
to the Trust pursuant to this Agreement;
(iii) the Pledged Collateral has been duly and validly issued and
is fully paid and non-assessable and such Pledged Collateral is not
subject to any options to purchase or similar rights;
(iv) this Agreement creates, in favor of the Trust and as
security for the Secured Obligations, a valid and enforceable perfected
lien on the Pledged Collateral;
(v) no consent, filing, recording or registration is required to
perfect the lien purported to be created by this Agreement against the
Pledged Collateral;
(vi) the Pledged Collateral represents all of the Ramco
Principals direct and indirect interests in the Trust, the Operating
Partnership and the Ramco Contributing Parties;
(vii) this Agreement constitutes a legal, valid and binding
obligation of each pledgor enforceable in accordance with its terms;
(viii) the execution, delivery and performance of this Agreement
will not (a) violate any provision of any applicable law or regulation
of any Governmental Body, (b) violate any provision of any mortgage,
indenture, lease, contract, pledge or other instrument or undertaking to
which any pledgor is a party or which purports to be binding upon any
pledgor or any of its assets, or (c) result in the creation or
imposition of any Lien on any assets of any pledgor except the Lien
created by this Agreement;
(ix) pursuant to the written waivers (the "TRANSFER WAIVERS"),
the applicable partners of the Ramco Contributing Parties and the
Partnership GP Entities, have irrevocably waived any and all limitations
and restrictions contained in the partnership agreements governing such
entities, on the right, power and ability of the Trust to (a) be granted
a pledge of, (b) acquire (through purchase, foreclosure or otherwise),
(c) foreclose upon or exercise any other remedies it may have pursuant
to this Agreement, at law or in equity or otherwise, in respect of, or
(d) sell or otherwise dispose of, any of the Pledged Collateral;
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(x) no Ramco Principal is a party to any Shareholders' Agreement
relating to his or its ownership of the Pledged Corporate GP Stock;
(xi) the principal place of business of such Pledgor (or
residence in the event such pledgor is an individual) is as set forth in
Exhibit F annexed hereto and made a part hereof).
Section 6. Covenants of the Pledgors. The Ramco Principals, jointly and
severally, covenant and agree with the Trust as follows:
(i) they will, or they will cause, the Pledgors to, defend the
Trust's right, title, claim of possession and Lien in and to the Pledged
Collateral against the claims and demands of all Persons;
(ii) they will pay and discharge all Liens, charges, claims,
taxes and other governmental charges, and all contractual obligations
requiring the payment of money, before such become overdue, that may
affect the Pledged Collateral or any part thereof, unless (but only to
the extent that) such payment is being contested in good faith and in
accordance with law;
(iii) they shall not, without the prior written consent of the
Trust (which consent shall not be unreasonably withheld), amend or
modify, or consent to the amendment or modification of, the
organizational documents of Ramco Contributing Parties, the Partnership
GP Entities and the Corporate GP Entities;
(iv) they will, or they will cause each pledgor to, join with the
Trust in executing and file and refile under the Uniform Commercial Code
such financing statements, continuation statements and other documents
in such offices as the Trust may reasonably deem necessary or desirable
and wherever required or permitted by law in order to perfect and
preserve the Trust's security interest in the Pledged Collateral and
hereby authorizes the Trust to file financing statements and amendments
thereto relative to all or any part of the Pledged Collateral without
the signature of such pledgor where permitted by law, and agrees to do
such further acts and things and to make, execute and deliver to the
Trust such additional conveyances, assignments, agreements, instruments
and financing statements as the Trust may reasonably require or deem
advisable to carry into effect the purposes of this Agreement or to
further assure and confirm unto the Trust its rights, powers and
remedies hereunder, and if any pledgor shall fail to execute any such
additional conveyances, assignments, agreements, instruments or
financing statements, the Trust, as attorney-in-fact for such pledgor
may in the name, place and stead of such pledgor, make, execute and
deliver any of the foregoing; and
(v) notify the Trust in writing forty-five (45) business days
prior to the date any pledgor changes its principal place of business or
principal residence in the event such
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pledgor is an individual, which notice shall set forth the full and
complete new principal place of business or principal residence, as the
case may be, of such pledgor.
Section 7. Marshalling. The Trust shall not be required to marshall any
present or future security for (including, but not limited to this Agreement or
any collateral pledged hereunder), or guaranties of, the Secured Obligations of
any pledgor, or to resort to such security or guaranties in any particular
order; and all of its rights hereunder and in respect of such security and
guaranties shall be cumulative and in addition to all other rights hereunder,
however existing or arising. To the extent that any pledgor may lawfully do so,
each pledgor hereby agrees not to invoke any law relating to the marshalling of
collateral which may cause delay and/or impede the enforcement of any of the
Trust's rights under this Agreement, or any other instrument evidencing any of
the obligations under this Agreement, the Master Agreement or any Ramco
Agreement or under which any of such obligations is outstanding or by which any
of such obligations is secured or guarantied, and to the extent that such
pledgor may lawfully do so, each pledgor hereby irrevocably waives the benefit
of all such laws.
Section 8. Deficiency. If the proceeds of sale, collection or realization
of or upon the Pledged Collateral pursuant to Section 4 hereof are insufficient
to cover the cost and expenses of such realization and the payment in full of
the Secured Obligations, the pledgor shall not be liable for any amounts which
exceed the Pledged Collateral. The Trust may not collect from the Pledged
Collateral more than the Secured Obligations plus costs and expenses of
realizing on such Pledged Collateral.
Section 9. The Ramco Principals' Obligations Not Affected. The obligations
of each pledgor hereunder shall remain in full force and effect and shall not be
impaired by:
(a) any bankruptcy or insolvency of any other pledgor;
(b) any amendment to or modification of any instrument (other than this
Agreement) securing any of the Secured Obligations;
(c) the taking of additional security for, or any guaranty of, any of
the Secured Obligations or the release or discharge or termination of any
security or guaranty for any of the Secured Obligations; or
(d) the lack of enforceability of any of the Secured Obligations against
any pledgor or any other person.
Section 10. Application of Proceeds. Except as otherwise expressly provided
in Section 8 herein, the proceeds of any collection, sale or other realization
of any or any part of the Pledged Collateral pursuant hereto shall be applied by
the Trust: first, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and expenses
of the Trust and the reasonable fees and expenses of its agents and counsel;
second, to the payment in full of the Secured Obligations; and finally, to the
payment to the pledgors (in
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accordance with their interests in the Pledged Collateral), or their heirs,
executives, administrators, successors or assigns, or as a court of competent
jurisdiction may direct, of any surplus then remaining.
As used in this Section 10, "THE PROCEEDS" of the Pledged Collateral shall
mean cash, securities and other property realized.
Section 11. Perfection. Each Ramco Principal shall deliver to the Trust (i)
to the extent that the Pledged Collateral are certificated securities, the
certificates representing the Pledged Collateral accompanied by undated stock or
other similar powers duly endorsed in blank, (ii) such Uniform Commercial Code
financing statements, executed by the applicable pledgor and in a form ready for
filing, as may be necessary or desirable to perfect the first priority security
interests in the Pledged Collateral granted to the Trust pursuant to this
Agreement and (iii) satisfactory evidence that all other filings, recordings,
registrations and other actions the Trust deems necessary or desirable to
establish, preserve and perfect the security interests granted to the Trust
pursuant to this Agreement shall have been made.
Section 12. Transfer, Etc.
(a) So long as an Event of Default shall not have occurred and be
continuing, each Ramco Principal shall have the right (i) at any time during the
12-month period following the date hereof, to pledge up to 25% of the OP Units
and Shares issued to, or received by, such Ramco Principal at the Closing to a
financial institution as collateral for any loan with respect to which such
Ramco Principal is personally liable and (ii) at any time after the expiration
of the 12-month period set forth in clause (i), to pledge up to 50% of the OP
Units and Shares issued to, or received by, such Ramco Principal at the Closing
inclusive of any OP Units or Shares pledged pursuant to clause (i)) to a
financial institution (a "PERMITTED TRANSFER"). Promptly following receipt of
notice from a Ramco Principal that he or it intends to make a Permitted Transfer
(which notice shall contain evidence that the proposed pledge satisfies the
requirements for a Permitted Transfer), the Trust shall release its lien on the
RP Pledged OP Units or the RP Pledged Shares that are the subject of the
Permitted Transfer.
(b) Except as permitted by clause (a), without the prior written consent
of the Trust, the pledgors will not sell, assign, transfer or otherwise dispose
of, grant any option with respect to, or pledge or grant any security interest
in or otherwise encumber any of the Pledged Collateral or any interest therein,
except for the pledge provided for in this Agreement.
Section 13. Termination. The security interest in the Pledged Collateral
granted to the Trust as security for the Secured Obligations shall terminate on
April 30, 1997 (the "TERMINATION DATE"), except as to Pledged Collateral having
a value (as determined in good faith by the Trust) of not more than 110% of any
amount claimed which the Trust gives written notice in accordance with Section
7.2 of the Master Agreement or Section 19 of the Ramco Agreements, as applicable
(a "PENDING CLAIM"). If a Pending Claim exists on the Termination Date, the
security interest in the remaining retained Pledged Collateral granted to the
Trust as security for the Secured
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Obligations shall terminate on such date (the "PENDING CLAIM TERMINATION DATE")
as when (a) the Ramco Principals' obligation relating to the Pending Claim has
been satisfied or (b) the Pending Claim has been finally resolved (by agreement
of the Trust and the Ramco Principals or a final judgment of a court of
competent jurisdiction). On the applicable termination date provided for in this
paragraph, the Trust shall forthwith cause to be assigned, transferred and
delivered, against receipt, any remaining Pledged Collateral and any money
received in respect of, to or in the order of the applicable pledges.
Section 14. Further Assurances. The pledgors will from time to time execute
and deliver to the Trust all such other and further instruments and documents
and take or cause to be taken all such other and further actions as the Trust
may reasonably request in order to effect and confirm more securely in the Trust
all rights contemplated in this Agreement.
Section 15. Expenses. The Ramco Principals agree to pay to the Trust all
reasonable out-of-pocket expenses of the Trust (including reasonable expenses
for legal services) of, or incident to the enforcement of, any provisions of
this Agreement.
Section 16. Miscellaneous.
(a) Waiver, etc. No act, failure or delay by the Trust shall constitute
a waiver of its rights, powers or remedies hereunder or otherwise. No single or
partial waiver by the Trust or any of its agents of any default or right or
remedy which it may have shall constitute a waiver of any other default, right
or remedy or of the same default, right or remedy on a future occasion. The
pledgors hereby waive presentment, notice of dishonor and protest of all
instruments and any and all other notices and demands whatsoever (except as
expressly provided herein). The remedies herein are cumulative and are not
exclusive of any other remedies which may be provided by law.
(b) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to the
conflicts of law principles thereof.
(c) All communications herein provided shall be in writing and shall be
sufficient if sent by United States mail, registered or certified, delivered by
messenger, overnight courier, telex or telefax, addressed as follows:
If to the Trust:
Ramco-Gershenson Properties Trust
[Address and Telecopier No. to come]
Attention: Joel M. Pashcow
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with a copy to:
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Telecopier No.: (212) 836-8689
Attention: Peter M. Fass, Esq.
If to any pledgor:
Ramco-Gershenson Properties Trust
27600 Northwestern Hwy
Suite 200
Southfield, Michigan 48034
Telecopier No.: (810) 350-9925
Attention: Mr. Dennis Gershenson
with a copy to:
Honigman Miller Schwartz and Cohen
2290 First National Building
Detroit, Michigan 48226-3583
Telecopier No.: (313) 962-0176
Attention: Richard Burstein, Esq.
or such other addresses where any party may receive any such communication or
notice as may be designated by written notice to the other parties. Any notice
given pursuant to this Section to effect a change of address shall be effective
when received.
(d) Successors and Assigns. This Agreement and all obligations of the
pledgors herein shall be binding upon the heirs, executives, successors and
assigns of the pledgors and shall, together with the rights and remedies of the
Trust, inure to the benefit of the Trust and its successors and assigns.
(e) Severability. If any term in this Agreement shall be held to be
invalid or illegal or unenforceable in any respect, the validity of all other
terms hereof shall be in no way affected thereby, and this Agreement shall be
construed and be enforceable as if such invalid, illegal or unenforceable term
had not been included herein.
(f) Exclusive Agreement. This Agreement supersedes all prior agreements
among the parties with respect to its subject matter, including, without
limitation, Section 20 of any Ramco Agreement, and is intended as a complete and
exclusive statement of the terms of the Agreement among the parties.
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(g) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any other parties hereto may execute this Agreement by signing
any such counterparts.
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IN WITNESS WHEREOF, the Ramco Principals and the Trust have caused this
Agreement to be duly executed as of the date first above written.
RAMCO-GERSHENSON PROPERTIES TRUST
By:______________________________________
Name:
Title:
_________________________________________
Dennis Gershenson
_________________________________________
Joel Gershenson
_________________________________________
Bruce Gershenson
_________________________________________
Richard Gershenson
_________________________________________
Michael Gershenson
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MICHAEL A. WARD U/T/A DATED 2/22/77, AS
AMENDED
By:______________________________________
Trustee
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RAMCO CONTRIBUTING PARTIES
KM BLUE ASH DEVELOPMENT COMPANY,
an Ohio co-partnership
By:______________________________________
Bruce Gershenson
Partner
LA II GROUP, an Ohio general partnership
By: RAMCO LEWIS ALEXIS ASSOCIATES,
a Michigan general partnership,
its Partner
By:________________________________
Bruce Gershenson
Partner
MICHIGAN SHOPPING CENTER VENTURES II
LIMITED PARTNERSHIP, a Michigan
limited partnership
By: RAMCO L & W PARTNERS,
a Michigan co-partnership,
its General Partner
By: RAMCO CP, a Michigan
co-partnership, its Partner
By:_________________________
Bruce Gershenson
Partner
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RAMCO CANTON CO.,
a Delaware general partnership
By: FORD SHELDON PLAZA COMPANY,
a Michigan limited partnership, its
Partner
By:________________________________
Bruce Gershenson
General Partner
RAMCO FRASER DEVELOPMENT COMPANY,
a Michigan co-partnership
By:______________________________________
Bruce Gershenson
Partner
RAMCO JACKSON DELAWARE LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: RAMCO JACKSON, INC.,
a Michigan corporation,
its General Partner
By:________________________________
Bruce Gershenson
Vice President
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RAMCO KENTWOOD ASSOCIATES,
a Michigan co-partnership
By:______________________________________
Bruce Gershenson
Partner
RAMCO LANSING ASSOCIATES,
a Michigan co-partnership
By:______________________________________
Bruce Gershenson
Partner
RAMCO LAPEER ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited
partnership
By: RAMCO LAPEER, INC., a Michigan
corporation, its General Partner
By:________________________________
Bruce Gershenson
Partner
RAMCO NOVI I CO., a Delaware general
partnership,
By: WEST OAKS DEVELOPMENT COMPANY,
a Michigan co-partnership, its
Partner
By:________________________________
Bruce Gershenson
Partner
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RAMCO NOVI II CO.,
a Delaware general partnership
By: RAMCO NOVI DEVELOPMENT
ASSOCIATES LIMITED PARTNERSHIP,
a Michigan limited partnership, its
Partner
By: RAMCO NOVI DEVELOPMENT
COMPANY, a Michigan co-
partnership, its General
Partner
By:__________________________
Bruce Gershenson
Partner
RAMCO OAK BROOK SQUARE ASSOCIATES
LIMITED PARTNERSHIP, a Michigan limited
partnership
By: RAMCO OAK BROOK SQUARE, INC.,
a Michigan corporation, its General
Partner
By:________________________________
Bruce Gershenson
Vice President
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RAMCO ORION CO., a Delaware general
partnership
By: W & G REALTY COMPANY, a Michigan
co-partnership, its Partner
By:________________________________
Bruce Gershenson
Partner
RAMCO ROSEVILLE CO., a Delaware general
partnership
By: ROSEVILLE PLAZA LIMITED
PARTNERSHIP
By: RAMCO VENTURES, a Michigan
co-partnership, its General
Partner
By:__________________________
Bruce Gershenson
Partner
RAMCO SINGER ASSOCIATES LIMITED
PARTNERSHIP, an Ohio limited partnership
By: RAMCO TROY ASSOCIATES, a Michigan
co-partnership, its General Partner
By:________________________________
Bruce Gershenson
Partner
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RAMCO SOUTH NAPLES DEVELOPMENT, a
Florida general partnership
By:______________________________________
Bruce Gershenson
Partner
RAMCO SOUTHFIELD CO., a Delaware general
partnership
By: SOUTHFIELD PLAZA LIMITED
PARTNERSHIP, a Michigan limited
partnership, its Partner
By: RAMCO VENTURES, a Michigan
co-partnership, its General
Partner
By:__________________________
Bruce Gershenson
Partner
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RAMCO STERLING MALL CO., a Delaware
general partnership
By: STERLING MALL ASSOCIATES
LIMITED PARTNERSHIP, a Michigan
limited partnership, its Partner
By: RAMCO CONSUMER MALL
ASSOCIATES LIMITED
PARTNERSHIP, a Michigan
limited partnership, its
General Partner
By:__________________________
Bruce Gershenson
General Partner
RAMCO STERLING STRIP CO., a Delaware
general partnership
By: KMW STERLING DEVELOPMENT
COMPANY, a Michigan co-partnership,
its Partner
By:________________________________
Bruce Gershenson
Partner
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RAMCO TEL-TWELVE CO., a Delaware general
partnership
By: TEL-TWELVE MALL ASSOCIATES
LIMITED PARTNERSHIP, a Michigan
limited partnership, its Partner
By:________________________________
Bruce Gershenson
Partner
SOUTHFIELD PLAZA LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO VENTURES, a Michigan general
partnership, its General Partner
By:________________________________
Bruce Gershenson
Partner
SPRING MEADOWS SHOPPING CENTER
ASSOCIATES, an Ohio general partnership
By: RAMCO SPRING MEADOWS
ASSOCIATES, a Michigan
co-partnership, its Partner
By:________________________________
Bruce Gershenson
Partner
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WEST ALLIS SHOPPING CENTER
ASSOCIATES, a Wisconsin general
partnership
By: RAMCO ALLIS DEVELOPMENT
COMPANY, a Michigan co-partnership,
its Partner
By:________________________________
Bruce Gershenson
Partner
and By: W-C TRUST
By:________________________________
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Exhibit J
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made as of _______________, 1995
(this "AGREEMENT"), among RAMCO-GERSHENSON PROPERTIES TRUST, a Maryland business
trust (the "COMPANY"), DENNIS GERSHENSON, JOEL GERSHENSON, BRUCE GERSHENSON,
RICHARD GERSHENSON, MICHAEL A. WARD, MICHAEL A. WARD U/T/A DATED 2/22/77, AS
AMENDED (collectively, the "RAMCO PRINCIPALS") and each of the Persons (together
with the Ramco Principals, collectively, the "HOLDERS") set forth on Exhibit A
hereto (as it may be amended from time to time).
RECITALS:
A. The Holders are entering into this Agreement in connection with the
transactions (the "RAMCO TRANSACTION") effectuated on this day by the Company
and Ramco-Gershenson, Inc. and its affiliates pursuant to which the Company
contributed cash and properties to Ramco-Gershenson Properties, L.P., a
Delaware limited partnership (the "OPERATING PARTNERSHIP").
B. Pursuant to the Ramco Transaction, the Holders have been issued units
of limited partnership interest in the Operating Partnership ("OP UNITS"), which
OP Units may be exchanged for shares of beneficial interest of the Company, par
value $.10 per share (the "SHARES") pursuant to an Exchange Rights Agreement
dated the date hereof and entered into among the Holders and the Company
pursuant to the Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, dated the date hereof (as amended from time to time, the
"OPERATING PARTNERSHIP AGREEMENT").
C. The Company has agreed to provide each of the Holders with certain
registration rights as set forth herein.
Accordingly, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1. "AGREEMENT" has the meaning set forth in the introductory
paragraph.
1.2. "RAMCO TRANSACTION" has the meaning set forth in Recital A.
<PAGE> 301
1.3. "BUSINESS DAY" means any day on which the New York Stock Exchange
is open for trading.
1.4. "CLOSING DATE" means the date of the consummation of the Ramco
Transaction.
1.5. "COMPANY" has the meaning set forth in the introductory paragraph.
1.6. "ELIGIBLE SECURITIES" means all or any portion of the Shares
acquired by the Holders in connection with or upon exchange of the OP Units. As
to any proposed offer or sale of Eligible Securities, such securities shall
cease to be Eligible Securities with respect to such proposed offer or sale when
(i) a registration statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall have
been disposed of in accordance with such registration statement or (ii) such
securities shall have been otherwise transferred pursuant to an applicable
exemption under the Securities Act, new certificates for such securities not
bearing a legend restricting further transfer shall have been delivered by the
Company and such securities shall be freely transferable to the public without
registration under the Securities Act.
1.7. "LOCK-UP AGREEMENTS" means the Lock-Up Agreements executed in favor
of the Company by each of the Holders.
1.8. "LOCK-UP DATE" (a) with respect to the Ramco Principals means the
date that is 30 months after the Closing Date and (b) with respect to Holders
other than the Ramco Principals means the date that is one year after the
Closing Date. If any such date is not a Business Day, the next succeeding date
that is a Business Day shall be the Lock-Up Date.
1.9. "OPERATING PARTNERSHIP" has the meaning set forth in Recital A.
1.10. "OPERATING PARTNERSHIP AGREEMENT" has the meaning set forth in
Recital B.
1.11. "PERSON" means an individual, a partnership (general or limited),
corporation, joint venture, business trust, cooperative, association or other
form of business organization, whether or not regarded as a legal entity under
applicable law, a trust (inter vivos or testamentary), an estate of a deceased,
insane or incompetent person, a quasi-governmental entity, a government or any
agency, authority, political subdivision or other instrumentality thereof, or
any other entity.
1.12. "PERMITTED TRANSFEREES" with respect to each Holder means (i) with
respect to OP Units, Persons which qualify as Permitted Transferees under the
Operating Partnership Agreement, and (ii) with respect to Shares, any other
Holder or an Affiliate of such Holder; provided, that no Person shall be deemed
to be a Permitted Transferee until the Company receives the requisite notice and
signature page pursuant to Section 7.1. As used herein, the term "AFFILIATE"
shall mean any Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with, a
specified Person, and, with respect to an individual, shall include such
Person's immediate family or a trust for the benefit thereof.
<PAGE> 302
1.13. "REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with the registration requirements set
forth in this Agreement including, without limitation, the following: (i) the
fees, disbursements and expenses of the Company's counsel(s) (United States and
foreign), accountants and experts in connection with the registration of
Eligible Securities to be disposed of under the Securities Act; (ii) all
expenses in connection with the preparation, printing and filing of the
registration statement, any preliminary prospectus or final prospectus, any
other offering document and amendments and supplements thereto and the mailing
and delivering of copies thereof to the underwriters and dealers; (iii) the cost
of printing or producing any agreement(s) among underwriters, underwriting
agreement(s) and blue sky or legal investment memoranda, any selling agreements
and any other documents in connection with the offering, sale or delivery of
Eligible Securities to be disposed of; (iv) all expenses in connection with the
qualification of Eligible Securities to be disposed of for offering and sale
under state securities laws, including the fees and disbursements of counsel for
the underwriters in connection with such qualification and in connection with
any blue sky and legal investment surveys; (v) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of Eligible Securities to be disposed of; (vi)
fees and expenses incurred in connection with the listing of Eligible Securities
on each securities exchange or quotation system on which the Shares are then
listed; and (vii) SEC or blue sky registration fees attributable to Eligible
Securities or transfer taxes applicable to Eligible Securities; provided, that
Registration Expenses with respect to any registration pursuant to this
Agreement shall not include underwriting discounts or commissions attributable
to Eligible Securities.
1.14. "SEC" means the Securities and Exchange Commission.
1.15. "SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the relevant time.
1.16. "SELLING INVESTOR" means any Holder who has requested registration
pursuant to Section 3.1.
ARTICLE II
EFFECTIVENESS OF REGISTRATION RIGHTS
2.1. EFFECTIVENESS OF REGISTRATION RIGHTS. This Agreement shall become
effective on the date hereof, provided, that the exercise of any registration
rights granted pursuant to Article 3 prior to the Lock-Up Date shall be subject
to the prior receipt by the Company of the written consent of a majority of the
Company's Board of Trustees (including a majority of the independent trustees)
to the waiver of the restrictions on transfer of the Shares and securities
convertible into or exchangeable or exercisable for Shares set forth in the
Lock-Up Agreement applicable to the Holder exercising such registration rights.
<PAGE> 303
ARTICLE III
INCIDENTAL REGISTRATION
3.1. NOTICE AND REGISTRATION. If the Company proposes to register any
Shares, any equity securities exercisable for, convertible into or exchangeable
for Shares, or other securities issued by it having terms substantially similar
to Eligible Securities ("OTHER SECURITIES") for public sale under the Securities
Act on a form and in a manner which would permit registration of Eligible
Securities for sale to the public under the Securities Act, it will give written
notice to each Holder of its intention to do so, and upon the written request of
any Holder delivered to the Company within 15 Business Days after the giving of
any such notice (which request shall specify the number of Eligible Securities
intended to be disposed of by such Holder and the intended method of disposition
thereof), the Company will use commercially reasonable efforts to effect, in
connection with the registration of the Other Securities, the registration under
the Securities Act of all Eligible Securities which the Company has been so
requested to register by the Selling Investors, to the extent required to permit
the disposition (in accordance with the intended method or methods thereof as
aforesaid) of Eligible Securities so to be registered, provided, that:
(a) if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the effective
date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register
the Other Securities, the Company may, at its election, give written
notice of such determination to the Selling Investors and thereupon the
Company shall be relieved of its obligation to register such Eligible
Securities in connection with the registration of such Other Securities
(but not from its obligation to pay Registration Expenses to the extent
incurred in connection therewith as provided in Section 3.2);
(b) The Company will not be required to effect any registration
pursuant to this Article 3 if the Company shall have been advised in
writing (with a copy to the Selling Investors) by a nationally recognized
independent investment banking firm selected by the Company to act as
lead underwriter in connection with the public offering of securities by
the Company that, in such firm's opinion, a registration of Eligible
Securities requested to be registered at that time would materially and
adversely affect the Company's own scheduled offering of Other
Securities; provided, that if an offering of some but not all of the
Eligible Securities requested to be registered by the Selling Investors
would not materially adversely affect the Company's offering of Other
Securities, the Company shall register the Maximum Excess Amount (as
defined below), and such Maximum Excess Amount shall be allocated pro
rata among all Selling Investors based upon the number of shares for
which registration was requested by each. For purposes of this paragraph,
the "MAXIMUM EXCESS AMOUNT" shall mean the largest number of Eligible
Securities (if any) that, in the opinion of the nationally recognized
independent investment banking firm selected by the Company, could be
offered to the public without materially adversely affecting the offering
and sale of Other Securities as then contemplated by the Company;
<PAGE> 304
(c) The Company shall not be required to effect any registration of
Eligible Securities under this Article 3 incidental to the registration
of any of its securities in connection with mergers, acquisitions,
exchange offers, subscription offers, dividend reinvestment plans or
stock options or other employee benefit plans; and
(d) Notwithstanding any request under Section 3.1(a), a Selling
Investor may elect in writing prior to the effective date of a
registration under this Article 3, not to register all or any portion of
its Eligible Securities in connection with such registration.
3.2. REGISTRATION EXPENSES. The Company shall be responsible for the
payment of all Registration Expenses in connection with any registration
pursuant to this Article 3.
ARTICLE IV
REGISTRATION PROCEDURES
4.1. REGISTRATION AND QUALIFICATION. If and whenever the Company is
required to use all reasonable efforts to effect the registration of any
Eligible Securities under the Securities Act as provided in Article 3, the
Company will as promptly as is practicable:
(a) prepare, file and use commercially reasonable efforts to cause
to become effective a registration statement under the Securities Act
regarding the Eligible Securities to be offered;
(b) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with
respect to the disposition of all Eligible Securities until the earlier
of such time as all of such Eligible Securities have been disposed of in
accordance with the intended methods of disposition by the Selling
Investors set forth in such registration statement or the expiration of
90 days after such Registration Statement becomes effective;
(c) furnish to the Selling Investors and to any underwriter of such
Eligible Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and
any summary prospectus), in conformity with the requirements of the
Securities Act, such documents incorporated by reference in such
registration statement or prospectus, and such other documents as the
Selling Investors or such underwriter may reasonably request;
(d) use commercially reasonable efforts to register or qualify all
Eligible Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as the Selling
Investors or any underwriter of such Eligible
<PAGE> 305
Securities shall reasonably request, and do any and all other acts and
things which may be reasonably requested by the Selling Investors or any
underwriter to consummate the disposition in such jurisdictions of the
Eligible Securities covered by such registration statement, except the
Company shall not for any such purpose be required to qualify generally
to do business as a foreign corporation in any jurisdiction wherein it is
not so qualified, or to subject itself to taxation in any jurisdiction
where it is not then subject to taxation, or to consent to general
service of process in any jurisdiction where it is not then subject to
service of process;
(e) use commercially reasonable efforts to list the Eligible
Securities on each national securities exchange or quotation system on
which the Shares are then listed, if the listing of such securities is
then permitted under the rules of such exchange;
(f) (i) use commercially reasonable efforts to furnish to the
Selling Investors an opinion of counsel for the Company, addressed to
them, dated the date of the closing under the underwriting agreement, and
(ii) upon such Selling Investor's request, use commercially reasonable
efforts to furnish to the Selling Investors a "comfort letter" signed by
the independent public accountants who have certified the Company's
financial statements included in such registration statement, addressed
to them; provided, that with respect to such opinion and "comfort
letter," the following shall apply: (A) the opinion and "comfort letter"
shall cover substantially the same matters with respect to such
registration statement (and the prospectus included therein) as are
customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of
securities and such other matters as the Selling Investors may reasonably
request; and (B) the "comfort letter" also shall cover events subsequent
to the date of such financial statements; and
(g) notify the Selling Investors immediately upon the happening of
any event as a result of which a prospectus included in a registration
statement, relating to a registration pursuant to Article 3, as then in
effect, includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and, at the request of the Selling Investors,
prepare and furnish to the Selling Investors as many copies of a
supplement to or an amendment of such prospectus as the Selling Investors
reasonably request so that, as thereafter delivered to the purchasers of
such Eligible Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
The Company may require the Selling Investors to furnish the Company such
information regarding the Selling Investors and the distribution of such
securities as the Company may from time to time reasonably request in writing
and as shall be required by law or by the SEC in connection with any
registration.
<PAGE> 306
4.2. UNDERWRITING. (a) If requested by the underwriters for any
underwritten offering of Eligible Securities pursuant to a registration
described in this Agreement, the Company will enter into and perform its
obligations under an underwriting agreement with such underwriters for such
offering, such agreement to contain such representations and warranties by the
Company and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the extent
provided in Article 6 and the provision of opinions of counsel and accountants'
letters to the effect and to the extent provided in Section 4.1(f). The holders
of Eligible Securities on whose behalf Eligible Securities are to be distributed
by such underwriters shall be parties to any such underwriting agreement and the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Eligible Securities.
(b) In the event that any registration pursuant to Article 3 shall
involve, in whole or in part, an underwritten offering, the Company may require
Eligible Securities requested to be registered pursuant to Article 3 to be
included in such underwriting on the same terms and conditions as shall be
applicable to the Other Securities being sold through underwriters under such
registration. In such case, the holders of Eligible Securities on whose behalf
Eligible Securities are to be distributed by such underwriters shall be parties
to any such underwriting agreement. Such agreement shall contain such
representations and warranties by the Company and the Selling Investors and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities and contribution to the effect and to the extent
provided in Article 6. The representations and warranties in such underwriting
agreement by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such holders of Eligible Securities.
4.3. QUALIFICATION FOR RULE 144 SALES. The Company will take all actions
reasonably necessary to comply with the filing requirements described in Rule
144(c)(1) so as to enable the Holders to sell Eligible Securities without
registration under the Securities Act and, upon the written request of any
Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such filing requirements.
ARTICLE V
PREPARATION; REASONABLE INVESTIGATION
5.1. PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement registering Eligible
Securities under the Securities Act, the Company will give the Selling Investors
and the underwriters, if any, and their respective counsel and accountants,
drafts of such registration statement for their review and comment prior to
filing and such reasonable and customary access to its books and records and
such opportunities to discuss the business of the Company with its officers and
the independent public accountants who have certified its financial statements
as shall be necessary, in the opinion of the Selling Investors
<PAGE> 307
and such underwriters or their respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
ARTICLE VI
INDEMNIFICATION AND CONTRIBUTION
6.1. INDEMNIFICATION. (a) In the event of any registration of Eligible
Securities hereunder, the Company will, and hereby does, indemnify and hold
harmless, each Selling Investor, its respective directors, trustees, officers,
partners, agents, employees and affiliates and each other person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls each such Selling Investor or any such
underwriter within the meaning of the Securities Act, against any and all
losses, claims, damages, expenses or liabilities, joint or several, actions or
proceedings (whether commenced or threatened) in respect thereof, to which each
such indemnified party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, expenses or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made not misleading,
and the Company will reimburse each such Selling Investor and each such
director, trustee, officer, partner, agent, employee or affiliate, underwriter
and controlling person for any legal or any other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, expense, liability, action, or proceeding; provided, that (i) the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, expense or liability (or action or proceeding in respect thereof)
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company through an instrument duly executed by or on behalf of such
Selling Investor or underwriter specifically stating that it is for use in the
preparation thereof, and (ii) the Company shall not be liable to any person who
participates as an underwriter in the offering or sale of Eligible Securities or
any other person, if any, who controls or is controlled by such underwriter
within the meaning of the Securities Act, in any such case to the extent that
any such loss, claim, damage, expense or liability (or action or proceeding in
respect thereof) arises out of such underwriter's failure to send or give a copy
of the final prospectus, as the same may be then supplemented or amended, to the
person asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of Eligible
Securities to such person if such statement or omission was corrected in such
final prospectus.
(b) Each Selling Investor severally will indemnify, and hereby
does, indemnify and hold harmless the Company, its trustees, its officers who
sign the registration statement, each
<PAGE> 308
Person who participates as an underwriter in the offering or sale of such
securities, and each Person, if any, who controls the Company or any such
underwriter within the meaning of the Securities Act against any and all losses,
claims, damages, expenses or liabilities, joint or several, actions or
proceedings (whether commenced or threatened) in respect thereof, to which each
such indemnified party may become subject under the Securities Act or otherwise
insofar as such losses, claims, damages, expenses or liabilities (or actions or
proceedings, whether commenced or threatened in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact in or omission or alleged omission to state a material fact in such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, but only
to the extent that such statement or omission was made in reliance upon and in
conformity with written information furnished by such Selling Investor to the
Company through an instrument duly executed by or on behalf of such Selling
Investor specifically stating that it is for use in preparation thereof and
provided, that no Selling Investor shall be liable to any person who
participates as an underwriter in the offering or sale of Eligible Securities or
any other person, if any, who controls or is controlled by such underwriter
within the meaning of the Securities Act, in any such case to the extent that
any such loss, claim, damage, expense or liability (or action or proceeding in
respect thereof) arises out of such underwriter's failure to send or give a copy
of the final prospectus, as the same may be then supplemented or amended, to the
person asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of Eligible
Securities to such person if such statement or omission was corrected in such
final prospectus..
(c) Promptly after receipt by any indemnified party hereunder of
notice of the commencement of any action or proceeding involving a claim
referred to in paragraphs (a) or (b) of this Section 6.1, the indemnified party
will notify the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
under paragraphs (a) or (b) of this Section 6.1, except to the extent it is
prejudiced thereby. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel selected by it
and approved by the indemnified party (which approval shall not be unreasonably
withheld or delayed), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under paragraph
(a) or (b) of this Section 6.1 for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that an indemnified party shall have the right
to retain its own counsel, with the reasonable fees and expenses to be paid by
the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. In addition, the
indemnifying party shall not be required to indemnify, reimburse or otherwise
make
<PAGE> 309
any contribution to the amount paid or payable by the indemnified party for any
losses, claims, damages, expenses or liabilities incurred by the indemnified
party in settlement of any actions, proceedings or investigations otherwise
covered hereunder unless such settlement has been previously approved by the
indemnifying party, which approval shall not be unreasonably withheld or
delayed.
(d) If for any reason the indemnity under this Section 6.1 is
unavailable or is insufficient to hold harmless any indemnified party under
paragraph (a) or (b) of this Section 6.1, then the indemnifying parties shall
contribute to the amount paid or payable to the indemnified party as a result of
any loss, claim, expense, damage or liability (or actions or proceedings,
whether commenced or threatened, in respect thereof), and legal or other
expenses reasonably incurred by the indemnified party in connection with
investigating or defending any such loss, claim, expense, damage, liability,
action or proceeding, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Investor and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. If, however, the allocation provided
in the second preceding sentence is not permitted by applicable law, or if the
allocation provided in the second preceding sentence provides a lesser sum to
the indemnified party than the amount hereinafter calculated, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party in such proportion as is appropriate to reflect not only such
relative fault but also the relative benefits of the indemnifying party and the
indemnified party as well as any other relevant equitable considerations. The
parties hereto agree that it would not be just and equitable if contributions
pursuant to this paragraph (d) of Section 6.1 were to be determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the preceding sentences of this
paragraph (d) of Section 6.1.
(e) Indemnification and contribution similar to that specified in
this Section 6.1 (with appropriate modifications) shall be given by the Company
and the Selling Investors with respect to any required registration or other
qualification of securities under any federal, state or blue sky law or
regulation of any governmental authority other than the Securities Act.
(f) Notwithstanding any other provision of this Section 6.1, to the
extent that any director, trustee, officer, partner, agent, employee, affiliate,
or other representative (current or former) of any indemnified party is a
witness in any action or proceeding, the indemnifying party agrees to pay to the
indemnified party all out-of-pocket expenses reasonably incurred by, or on the
behalf of, the indemnified party and such witness in connection therewith.
(g) All legal and other expenses incurred by or on behalf of any
Selling Investor in connection with investigating or defending any loss, claim,
expense, damage, liability, action or proceeding shall be paid by the Company in
advance of the final disposition of such investigation, defense, action or
proceeding within 30 days after the receipt by the Company of
<PAGE> 310
a statement or statements from the Selling Investor requesting from time to time
such payment, advance or advances. The entitlement of each Selling Investor to
such payment or advancement of expenses shall include those incurred in
connection with any action or proceeding by the Selling Investor seeking an
adjudication or award in arbitration pursuant to this Section 6.1. Such
statement or statements shall reasonably evidence such expenses incurred by the
Selling Investor in connection therewith.
(h) The termination of any proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, adversely affect the rights of any indemnified party to
indemnification hereunder or create a presumption that any indemnified party
violated any federal or state securities laws.
(i) (i) In the event that advances are not made pursuant to this
Section 6.1 or payment has not otherwise been timely made, each indemnified
party shall be entitled to seek a final adjudication in an appropriate court of
competent jurisdiction of the entitlement of the indemnified party to
indemnification or advances hereunder.
(ii) The Company and the Selling Investors agree that they
shall be precluded from asserting that the procedures and presumptions of this
Section 6.1 are not valid, binding and enforceable. The Company and the Selling
Investors further agree to stipulate in any such court that the Company and the
Selling Investors are bound by all the provisions of this Section 6.1 and are
precluded from making any assertion to the contrary.
(iii) To the extent deemed appropriate by the court, interest
shall be paid by the indemnifying party to the indemnified party at a reasonable
interest rate for amounts which the indemnifying party has not timely paid as
the result of its indemnification and contribution obligations hereunder.
(j) In the event that any indemnified party is a party to or
intervenes in any proceeding in which the validity or enforceability of this
Section 6.1 is at issue or seeks an adjudication to enforce the rights of any
indemnified party under, or to recover damages for breach of, this Section 6.1,
the indemnified party, if the indemnified party prevails in whole in such
action, shall be entitled to recover from the indemnifying party and shall be
indemnified by the indemnifying party against, any expenses incurred by the
indemnified party. If it is determined that the indemnified party is entitled to
indemnification for part (but not all) of the indemnification so requested,
expenses incurred in seeking enforcement of such partial indemnification shall
be reasonably prorated among the claims, issues or matters for which the
indemnified party is entitled to indemnification and for such claims, issues or
matters for which the indemnified party is not so entitled.
(k) The indemnity agreements contained in this Section 6.1 shall be
in addition to any other rights (to indemnification, contribution or otherwise)
which any indemnified party may have pursuant to law or contract and shall
remain operative and in full force and effect
<PAGE> 311
regardless of any investigation made or omitted by or on behalf of any
indemnified party and shall survive the transfer of any Eligible Securities by
any Investor.
ARTICLE VII
BENEFITS OF REGISTRATION RIGHTS
7.1. BENEFITS OF REGISTRATION RIGHTS. Each Holder shall give notice to
the Company of any transfer by it of Eligible Securities to a Permitted
Transferee, identifying the name and address of such Permitted Transferee and
the Eligible Securities so transferred, and accompanied by a signature page to
this Agreement pursuant to which such Permitted Transferee agrees to be bound by
the terms and conditions hereof.
ARTICLE VIII
MISCELLANEOUS
8.1. CAPTIONS. The captions or headings in this Agreement are for
convenience and reference only, and in no way define, describe, extend or limit
the scope or intent of this Agreement.
8.2. SEVERABILITY. If any clause, provision or section of this Agreement
shall be invalid or unenforceable, the invalidity or unenforceability of such
clause, provision or section shall not affect the enforceability or validity of
any of the remaining clauses, provisions or sections hereof to the extent
permitted by applicable law.
8.3. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of New York, without reference to
its rules as to conflicts or choice of laws.
8.4. MODIFICATION AND AMENDMENT. This Agreement may not be changed,
modified, discharged or amended, except by an instrument signed by all of the
parties hereto.
8.5. TERMINATION OF AGREEMENT. This Agreement and the rights granted
hereunder shall terminate on December 31, 2094, or such earlier date on which
the Operating Partnership may be dissolved in accordance with the Operating
Partnership Agreement.
8.6. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
8.7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding among the parties and supersedes any prior understandings
and/or written or oral agreements among them respecting the subject matter
herein.
<PAGE> 312
8.8. NOTICES. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery service
or by certified mail, return receipt requested, postage prepaid. Notices shall
be deemed given when actually received, which shall be deemed to be not later
than the next Business Day if sent by overnight courier or after five Business
Days if sent by mail. Notice to the Company shall be made to such party at 27600
Northwestern Highway, Suite 200, Southfield, Michigan 48034, Attn: Chairman.
Notice to each Holder shall be made to such party at the address set forth under
each such Holder's signature hereto, with a copy to Honigman Miller Schwartz and
Cohen, 2290 First National Building, Detroit, Michigan 48226-3583, Attn: Richard
Burstein, Esq.
8.9. JURISDICTION; VENUE. The parties to this Agreement hereby
irrevocably submit to the jurisdiction of any Michigan State or Federal court
and any appellate court from any thereof over any action or proceeding arising
out of or relating to this Agreement, and hereby irrevocably agree that all
claims in respect of such action or proceeding may be heard and determined in
such Michigan State court or in such Federal Court. The parties to this
Agreement hereby irrevocably waive, to the fullest extent permitted under law,
the defense of an inconvenient forum or improper venue to the maintenance of
such action or proceeding.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above written.
RAMCO-GERSHENSON PROPERTIES TRUST
By:______________________________
Name:
Title:
---------------------------------
Dennis Gershenson
[Address]
---------------------------------
Joel Gershenson
[Address]
---------------------------------
Bruce Gershenson
[Address]
<PAGE> 313
---------------------------------
Richard Gershenson
[Address]
---------------------------------
Michael A. Ward
[Address]
MICHAEL A. WARD U/T/A, DATED
2/22/77, AS AMENDED
By:_______________________
Trustee
[Other Holders - to Come]
<PAGE> 314
Exhibit K
FORM OF LOCK-UP AGREEMENT
_____________, 1995
Ramco-Gershenson Properties Trust
27600 Northwestern Highway
Suite 200
Southfield, Michigan 48034
Gentlemen:
Reference is made to the Master Agreement, dated as of_____________
, 1995 (the "AGREEMENT"), among RPS Realty Trust, a Massachusetts business
trust, Ramco-Gershenson, Inc., a Delaware corporation ("RAMCO"), Dennis
Gershenson, Joel Gershenson, Bruce Gershenson, Richard Gershenson, Michael A.
Ward, Michael A. Ward U/T/A dated 2/22/77, as amended, Ramco-Gershenson
Properties, L.P., a Delaware limited partnership (the "OPERATING PARTNERSHIP"),
and the Ramco affiliates listed on Schedule A to the Agreement. Capitalized
terms not otherwise defined herein shall have the meanings set forth in the
Agreement.
This letter agreement is entered into pursuant to Section 3.3(c) of
the Agreement. As used herein, the term "COMPANY" shall mean Ramco-Gershenson
Properties Trust, a Maryland business trust.
In order to induce the Company to consummate the Contemplated
Transactions, the undersigned, intending to be legally bound, hereby agrees
that, without the prior written consent of a majority of the Board of Trustees
of the Company (including a majority of the independent trustees of the
Company), for a [30-month period]* commencing on the date hereof (the "LOCK-UP
PERIOD") the undersigned will not, directly or indirectly, offer to sell, sell,
grant any option for the sale
- --------------
* Lock-up agreements with Persons other than the Ramco Principals will
provide for a 12-month Lock-up Period.
<PAGE> 315
of, or otherwise dispose of, any units of limited partnership interest ("OP
UNITS") in the Operating Partnership or any shares of beneficial interest of the
Company, par value $.10 per share (the "SHARES") , issuable upon exchange of the
OP Units in accordance with the Exchange Rights Agreement dated the date hereof
among the undersigned, the Company and the other holders of OP Units pursuant to
the Agreement of Limited Partnership of the Operating Partnership.
The undersigned acknowledges that any sale or transfer of any OP
Units or Shares in violation of this letter will be null and void. The
undersigned acknowledges that it is impossible to measure the damages that will
accrue to the Company by reason of a failure of the undersigned to comply with
the provisions of this letter. Therefore, if the Company shall institute any
action or proceeding to enforce the provisions hereof, the undersigned agrees
that the Company shall be entitled to injunctive relief, and the undersigned
waives, and shall not allege, any claim or defense to such action or proceeding,
including, without limitation, any claim or defense that the undersigned has an
adequate remedy at law.
This letter shall not prohibit the undersigned from (i) exercising
any options to purchase Shares issued to the undersigned under the New Option
Plan, (ii) in connection with an exercise permitted by the preceding clause (i),
delivering to the Company Shares in payment of the exercise price of such
options or the withholding taxes payable in connection with such exercise, (iii)
transferring OP Units, or Shares to Permitted Transferees (as defined in the
Limited Partnership Agreement of the Operating Partnership as in effect on the
date hereof) of the undersigned and any Affiliate (as defined below) of the
undersigned or of such Permitted Transferees, provided that such transferee
agrees in writing to the transfer restrictions described above, [(iv) during the
12-month period following the date hereof, pledging up to 25% of the OP Units
and Shares received by the undersigned at the Closing to a financial institution
as collateral for any loan with respect to which the undersigned is personally
liable, or (v) after the expiration of the 12-month period set forth in clause
(iv) until the expiration of the Lock-Up Period, pledging up to 50% of the OP
Units and Shares received by the undersigned at the Closing (inclusive of any OP
Units or Shares pledged pursuant to clause (iv)) to a federally or state
chartered financial institution as collateral for any loan with respect to which
the undersigned in personally liable.]** As used herein, the term "AFFILIATE"
shall mean any Person that, directly or indirectly, through one or more
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** Clauses (iv) and (v) will be included in the Lock-Up
Agreements with the Ramco Principals only.
2
<PAGE> 316
intermediaries, controls, is controlled by or is under common control with a
specified Person, and, with respect to an individual, shall include such
Person's immediate family or a trust for the benefit thereof.
In the event of the undersigned's death prior to the expiration of
the Lock-Up Period, the undersigned's estate shall not be prohibited from
selling OP Units and/or Shares held by the undersigned to the minimum extent
necessary to fund the payment of estate taxes due upon the death of the
undersigned.
Very truly yours,
---------------------------
Signature
---------------------------
Name (Please Print or
Type)
3
<PAGE> 317
Exhibit L
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (this "AGREEMENT") is entered into as
of _______, 1995 by and between__________________("EXECUTIVE") and
Ramco-Gershenson Properties Trust, a Maryland business trust (the "TRUST").
R E C I T A L S :
A. On the date hereof, the Company (as defined below) and
Ramco-Gershenson, Inc. and its affiliates (collectively "RAMCO") have
consummated a transaction (the "RAMCO TRANSACTION") pursuant to which the
Company and Ramco have contributed cash and properties to Ramco-Gershenson
Properties, L.P., a Delaware limited partnership.
B. It was a condition to the consummation of the Ramco Transaction
that the Trust and Executive enter into an agreement restricting the activities
of Executive that would eliminate potential conflicts of interest that may arise
in the future and would otherwise protect the Company's legitimate business
interests.
Accordingly, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein shall have the
meanings set forth below:
"AFFILIATE" means (i) any entity directly or indirectly controlling
(including without limitation an entity for which Executive serves as an
officer, director, employee, consultant or other agent), controlled by, or under
common control with Executive, and (ii) each other entity in which Executive,
directly or indirectly, owns any controlling interest or of which Executive
serves as a general partner.
"AGREEMENT" shall have the meaning set forth in the heading of this
Agreement.
"COMPANY" means (i) Ramco-Gershenson Properties Trust, (ii)
Ramco-Gershenson, Inc., a Michigan corporation, (iii) any corporation,
partnership or other business entity that is, directly or indirectly, controlled
by or under common control with Ramco-Gershenson Properties Trust and (iv) their
respective successors.
"COMPANY PROJECT" means any properties, development land and
development out parcels that the Company owns, operates or manages as of the
date of Executive's termination of employment with the Company or that the
Company has in any manner taken steps to acquire, develop, construct, operate,
manage or lease (including without limitation making market surveys of
<PAGE> 318
a site, talking to the owner or his agent concerning the purchase or joint
venture of a site, optioning or contracting to buy a site or discussions with
the owner or his agent regarding managing or leasing a property) during the
twelve (12) month period immediately preceding Executive's termination of
employment with the Company.
["COVENANT PERIOD" means the period commencing on the Effective Date
and ending on the later of the following:
(i) the date Executive is no longer an officer or trustee of the
Company and
(ii) three (3) years following the Effective Date;
provided, that if at any time during Covenant Period Executive 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 Covenant Period shall expire
on the later of the following:
(x) one year after the date Executive is no longer an officer or
trustee of the Company and
(y) four years following the Effective Date.](1)
["COVENANT PERIOD" means the period commencing on the Effective Date
and ending on the later of the following:
(i) one year after Executive is no longer an officer or trustee of
the Company and
(ii) four years following the Effective Date.](2)
"EFFECTIVE DATE" means the date of the closing of the Ramco
Transaction.
"EMPLOYMENT AGREEMENT" shall mean the Employment Agreement dated the
date hereof between the Trust and Executive.
"EXECUTIVE" shall have the meaning set forth in the heading of this
Agreement.
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1 Note: This definition of Covenant Period will be utilized in the
agreements with Bruce Gershenson, Richard Gershenson and Michael A.
Ward.
2 Note: This definition of the Covenant Period will be utilized in the
agreements with Joel Gershenson and Dennis Gershenson.
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"OPERATING PARTNERSHIP" shall have the meaning set forth in Recital
A.
"RAMCO" shall have the meaning set forth in Recital A.
"RAMCO TRANSACTION" shall have the meaning set forth in Recital A.
"PROPERTY" means any real property on which shopping center or
retail use (or any combination of the foregoing) development has been
constructed or is now or hereafter proposed to be constructed or any other type
of real property which hereafter the Company may acquire, develop, own,
construct, manage or may disclose or authorize any intention, plan or
arrangement to acquire, develop, own, construct or manage.
2. Executive's Obligations While Employed by the Company.
(a) Sole Employment. Subject to the provisions of paragraph
2(b) below, Executive agrees to devote substantially his full time during the
customary business hours of the Company and give his best efforts to the
business of the Company and, during the period of his employment by the Company,
Executive shall not engage in any manner, whether as an officer, employee,
owner, partner, stockholder, trustee, director, consultant or otherwise,
directly or indirectly, in any business other than on behalf of the Company
without the prior written approval of the Board of Trustees of the Company, and
Executive shall not accept any other employment whatsoever from any other
person, firm, corporation or entity.
(b) Exceptions. Notwithstanding the provisions of paragraph
2(a) above and of paragraph 3, Executive may during the term of his employment
by the Company and at any time thereafter (i) acquire an interest in any
corporation, partnership, venture or other business entity so long as (A) any
such interest is a passive investment of Executive, provided such interest does
not represent a direct or indirect interest in any Property, (B) such interest
does not afford Executive the power to influence in any material fashion the
decision making processes of the entity in which such interest is held and (C)
Executive is not the sponsor, promoter or similar initiator of such entity, (ii)
continue (W) to serve as a general or limited partner of each of the
partnerships which own the Properties identified on Schedule 1, attached hereto
and incorporated by this reference, as an officer, director and shareholder of
each of the corporations identified on such Schedule 1, and as a beneficiary of
the estate properties listed on Schedule 1, (X) to discharge Executive's
fiduciary and contractual duties and obligations with respect thereto, even
though such limited partnerships and corporations (or any partnership of which
any such limited partnership or corporation is a general or limited partner) may
directly compete with the Company, (Y) to serve on not more than three (3)
Boards of Directors of publicly traded entities and (Z) to serve on the Board of
Directors of any charitable institution, and (iii) continue to engage in
Executive's existing video arcade and fast food businesses, as those businesses
may be expanded in the ordinary course.
3
<PAGE> 320
3. Executive's Obligations Following Termination of Employment
with the Company.
(a) Anti-Pirating of Employees. During the Covenant Period,
Executive agrees not to hire, directly or indirectly, or entice or participate
in any efforts to entice to leave the Company's employ, any person who was or is
a "key employee" (as hereinafter defined) of the Company at any time during the
twelve (12) month period immediately preceding the termination date of
Executive's employment with the Company. For purposes of this Agreement, "key
employee" means an employee who has an annualized rate of base salary equaling
or exceeding sixty thousand dollars ($60,000).
(b) Anti-Pirating of Company Projects. During the Covenant
Period, Executive agrees not to, directly or indirectly, own, manage, join or
control, or participate in the ownership, operation or control of, or be an
officer of, director, employee or owner of, or a consultant to, or otherwise
authorize the use of his name by, or be connected in any manner with, any
business, firm or corporation which engages or attempts to engage, directly or
indirectly, in the acquisition, development, construction, operation, management
or leasing of any Company Project, other than on behalf of the Company.
(c) Noncompetition. During the Covenant Period, Executive
agrees not to, directly or indirectly, own, manage, join or control, or
participate in the ownership, operation or control of, or be an officer,
director, employee or owner of, or a consultant to, or otherwise authorize the
use of his name by, or be connected in any manner with, any business, firm or
corporation which at the time or at any time during the Covenant Period is
involved in the acquisition, development, construction, operation, management or
leasing of any Property within a 200 mile radius of any Company Project that
existed at any time during the twelve (12) month period immediately preceding
the termination date of Executive's employment with the Company.
(d) Trade Secrets and Confidential Information. Executive
hereby agrees that he will hold in a fiduciary capacity for the benefit of the
Company, and shall not directly or indirectly use or disclose any Trade Secret
(as hereinafter defined), that Executive may have acquired during the term of
his employment by the Company for so long as such information remains a Trade
Secret. The term "Trade Secret" as used in this Agreement shall mean information
including, but not limited to, technical or nontechnical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique, a drawing, a
process, financial data, financial plans, product plans, or a list of actual or
potential customers or suppliers which:
derives economic value, actual or potential from not being
generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value
from its disclosure or use; and is the subject of reasonable
efforts by the Company to maintain its secrecy.
4
<PAGE> 321
In addition to the foregoing and not in limitation thereof,
Executive agrees that during the period of his employment by the Company and the
Covenant Period, he will hold in a fiduciary capacity for the benefit of the
Company and shall not directly or indirectly use or disclose, any Confidential
or Proprietary Information (as hereinafter defined), that Executive may have
acquired (whether or not developed or compiled by Executive and whether or not
Executive was authorized to have access to such Information) during the term of,
in the course of or as a result of his employment by the Company and Ramco. The
term "Confidential or Proprietary Information" as used in this Agreement means
any secret, confidential or proprietary information of the Company and Ramco not
otherwise included in the definition of "Trade Secret" above. The term
"Confidential and Proprietary Information" does not include information that has
become generally available to the public by the act of one who has the right to
disclose such information without violating any right of the Company.
(e) Exceptions. Notwithstanding any provision of paragraph 3(c)
to the contrary, Executive shall not be restricted at any time after his
termination of employment with the Company from engaging in any activities for
which Executive would not be restricted from performing during the term of his
employment with the Company as set forth in paragraph 2(b) above.
4. Reasonable and Necessary Restrictions. Executive acknowledges
that the restrictions, prohibitions and other provisions hereof, including
without limitation the 200-mile radius set forth in paragraph 3(c) and the
Covenant Period, are reasonable, fair and equitable in scope, terms and
duration, are necessary to protect the legitimate business interests of the
Company, and are a material inducement to the Company to enter into the Ramco
Transaction. Executive hereby waives, and covenants not to assert in any action
or proceeding relating to this Agreement, any claim or defense that there exists
an adequate remedy at law for breach of this Agreement.
5. Restrictions In Addition to Employment Agreement. Executive
acknowledges that the restrictions, prohibitions and other provisions hereof
shall be in addition to and not in substitution of the restrictions,
prohibitions and other provisions of the Employment Agreement, as such agreement
shall be amended and supplemented from time to time.
6. Specific Performance. Executive acknowledges that the
obligations undertaken by him pursuant to this Agreement are unique and that
the Company likely will have no adequate remedy at law if Executive shall fail
to perform any of his obligations hereunder, and Executive therefore confirms
that the Company's right to specific performance of the terms of this
Agreement is essential to protect the rights and interests of the Company.
Accordingly, in addition to any other remedies that the Company may have at
law or in equity, the Company shall have the right to have all obligations,
covenants, agreements and other provisions of this Agreement specifically
performed by Executive, and the Company shall have the right to obtain
preliminary and permanent injunctive relief to secure specific performance
and to prevent a breach or contemplated breach of this Agreement by Executive,
and Executive submits to the jurisdiction of the courts of the State of
Michigan for this purpose.
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7. Operations of Affiliates. Executive agrees that he will refrain
from (i) authorizing any Affiliate to perform or (ii) assisting in any manner
any Affiliate in performing any activities that would be prohibited by the terms
of this Agreement if they were performed by Executive. Notwithstanding anything
to the contrary contained in this paragraph 7 (or in any other paragraph of this
Agreement), Executive shall not be required by the terms of this Agreement to
violate any fiduciary or contractual duty he owes as a director or officer of a
corporation, as a partner of a partnership or as a trustee of a trust, which
position he holds not in violation of this Agreement or the Employment
Agreement.
8. Miscellaneous Provisions.
(a) Binding Effect. Subject to any provisions hereof restricting
assignment, all covenants and agreements in this Agreement by or on behalf of
any of the parties hereto shall bind and inure to the benefit of the respective
successors, assigns, heirs, and personal representatives. None of the parties
hereto may assign any of its rights under this Agreement or attempt to have any
other person or entity assume any of its obligations hereunder.
(b) Severability. If any clause, provision or section of this
Agreement shall be invalid or unenforceable, the invalidity or unenforceability
of such clause, provision or section shall not affect the enforceability or
validity of any of the remaining clauses, provisions or sections hereof to the
extent permitted by applicable law.
(c) Governing Law. This Agreement shall be construed and
enforced in accordance with the internal laws of the State of New York, without
reference to its rules as to conflicts or choice of laws.
(d) Amendment. This Agreement may not be changed, modified,
discharged or amended, except by an instrument signed by all of the parties
hereto.
(e) Headings. Paragraph and subparagraph headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
(f) Pronouns. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person or entity may require.
(g) Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
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(h) Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties and supersedes any prior
understandings and/or written or oral agreements among them respecting the
subject matter herein.
(i) Notices. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery service
or by certified mail, return receipt requested, postage prepaid. Notices shall
be deemed given when actually received, which shall be deemed to be no later
than the next business day if sent by overnight courier or after five business
days if sent by mail. Notice to the Company shall be made at 27600 Northwestern
Highway, Suite 200, Southhold, Michigan 48034; Attn: Chairman. Notice to
Executive shall be made at the address set forth on the books of the Company.
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement,
or caused this Agreement to be duly executed on its behalf, as of the date first
set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: ___________________________
Name:
Title:
--------------------------------
[Name of Executive]
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<PAGE> 324
Schedule 1
River's Edge Office Building Southfield, Michigan
Summit Complex (Summit Place, Summit
Crossing, Summit North) Waterford, Michigan
Livonia Towne Square Livonia, Michigan
Bay Towne Plaza Saginaw, Michigan
Builders Square (vacant) Sterling Heights, Michigan
Park Place Shopping Center Sandusky, Ohio
North Towne Commons Toledo, Ohio
Estate Properties
Land Contracts
Southfield Properties - GGJ Associates
Melvindale Plaza
Gershenson-Wittbold Mt. Clemens
Nine Mile & Harper
Southfield Properties - Plymouth/
Southfield
Southfield Properties - Van Born
Southfield Properties - Ypsilanti
Partnership Interest in Sale/Leaseback
Assets
Southfield Properties - Southgate
Southfield Properties - Westland
Partnership Interest in Real Estate Owned
in Fee
Southfield Properties - Cedar/Jolly
Maple & Livernois Plaza
G & R Development
G & S Realty Company
Southfield Properties - Lansing Mart
Gershenson-Wittbold Louisville
Michigan Mart Associates
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Following is a list of businesses in which the Ramco Principals are involved
which are not included as part of the transaction and are not a part of excluded
properties. This following list is for informational purposes only.
Ponmalrest Associates, Inc. Burger King Franchise
R G Partnership Burger King Property Landlord
Video arcade businesses as of May 12, 1994:
Ramco Video - Tel-Twelve Mall Video Arcade
Main Street Video Video Arcade
Summit Video Video Arcade
Gershenson Industries, Inc. Fastener Systems Licensing
The Ward Group, Inc. Card Shops
<TABLE>
<CAPTION>
Vacant Land
- -----------
Acres
-----
<S> <C>
Sterling Heights, Michigan 5.4
Waterford, Michigan 5.0, 1.15, 2.6, 1.2
Saginaw, Michigan 3.77, 25.54
Sandusky, Ohio 1.1, 1.6, .96, 8.63, 6.92
Troy, Ohio .92, 18.745
Commerce Township, Michigan 1.55, 24.55
</TABLE>
9
<PAGE> 326
EXHIBIT M
OPTION AGREEMENT AND RIGHT OF FIRST OFFER/REFUSAL
THIS AGREEMENT made this ____ day of __________, 1995, by and among the
entities set forth on Schedule 1 attached hereto (each of which is hereinafter
individually referred to as a "Seller" and all of which are collectively
referred to as "Sellers"), and RAMCO-GERSHENSON PROPERTIES, L.P., a [Delaware
limited partnership] (hereinafter referred to as "Buyer").
W I T N E S S E T H:
WHEREAS, certain Affiliates of Sellers and Buyer are parties to a
certain Master Agreement dated as of April ____, 1995 (the "Master Agreement")
and the parties hereto are entering into this Agreement as contemplated under
the Master Agreement; capitalized terms used in this Agreement and not defined
shall have the meanings ascribed to them under the Master Agreement;
WHEREAS, each Seller owns either (i) the parcel or parcels of land set
forth opposite its respective name on Schedule 1 (each of which is
individually referred to as a "Fee Property" and all of which are collectively
referred to as the "Fee Properties") or (ii) the percentage interest set forth
opposite its respective name on Schedule 1 in a partnership (the "PI Property
Partnership") which owns the parcel or parcels of land set forth on Schedule 1
(each of which partnership interest and any reductions or increases in the
partnership interest hereafter owned directly or indirectly by the Ramco
Principals or any of their Affiliates is individually referred to as a "PI
Property" and all of which are collectively referred to as the "PI Properties")
(the Fee Properties and the "PI Properties" are collectively referred to as the
"Properties");
WHEREAS, Sellers desire to grant and Buyer desires to accept certain
options and rights of first offer and refusal regarding the Properties on the
terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the payment of One Dollar ($1.00)
to each other, and of the mutual promises contained in this Agreement and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Sellers and Buyer covenant and agree, intending to be
legally bound, as follows:
1. Purchase Option.
(a) Each Seller hereby grants to Buyer the option to
purchase each Property of such Seller (other than the Summit Complex, as
defined in and as to which an option may hereafter arise pursuant to,
subparagraph (b) below) set forth on Schedule 1 opposite such Seller's name
(such option, together with such option as may hereafter arise with respect to
the Summit Complex is herein called the "Purchase Option"). Except for the
interest of Seller in the Summit Complex, the price for each Property shall be
the lesser of such Seller's "Net Cash
<PAGE> 327
Investment" in such Property or the "Fair Market Value" of such Property, all
as determined according to the Option Terms and Conditions set forth in Exhibit
"A". The Purchase Option may be exercised only by written notice of exercise
(an "Exercise Notice") sent to a Seller not later than ten (10) years from the
date of this Agreement (the "Option Term"). If Buyer shall timely exercise such
option, then the Exercise Notice shall constitute an agreement of sale for the
Property in question on the terms and conditions of Exhibit "A" hereto, except
to the extent such terms and conditions are altered by agreement of the parties.
(b) If at any time during the Option Term any of the Ramco
Principals and any Affiliate of the Ramco Principals together directly or
indirectly own in the aggregate a twenty-five percent (25%) or greater
interest, direct or indirect, in the shopping centers commonly known as Summit
Place Complex located in Waterford Township, Michigan, ("Summit Complex"),
Buyer shall have an automatic option to purchase all of the interests directly
or indirectly owned by the Ramco Principals and any Affiliate of the Ramco
Principals in the Summit Complex (such interests directly or indirectly owned
by the Ramco Principals and any Affiliate of the Ramco Principals are herein
collectively called the "Summit Interests"). The Ramco Principals covenant and
agree that Buyer shall receive written notice promptly after the Ramco
Principals or their Affiliates individually or collectively own in the
aggregate, directly or indirectly, a twenty-five percent (25%) or greater
interest, direct or indirect, in the Summit Complex. The term "Affiliate of
the Ramco Principals" shall mean the spouse, sibling, parent or child of any
Ramco Principal, the spouse of any sibling, parent or child of any Ramco
Principal, any entity controlled by the Ramco Principals or any of them and
any employee of any such entity. The holders of all of the Summit Interests
shall grant to Buyer the option to purchase the Summit Interests (the "Summit
Purchase Option"), subject to the receipt of any necessary consents required
under the Summit Partnership's partnership agreement which the Ramco Principals
covenant to use commercially reasonable efforts to obtain, but the Ramco
Principals shall not be required to pay money or other consideration to obtain
such approvals except that the Ramco Principals will pay normal fees and
expenses of counsel and such normal overhead costs as may be necessary. The
purchase price for the Summit Interests shall be ninety percent (90%) of the
"FMV" of the Summit Interests as determined according to the Option Terms and
Conditions attached hereto as Exhibit "A". The Summit Purchase Option may be
exercised only by Buyer's written notice (the "Summit Exercise Notice") sent to
the holders of the Summit Interests prior to the expiration of the Option Term.
If Buyer shall timely exercise such option, then the Summit Exercise Notice
shall constitute an agreement of sale for the Summit Interests on the terms
and conditions of Exhibit "A" hereto, except to the extent such terms and
conditions are altered by the agreement of the parties.
2. Right of First Offer/Refusal for Property.
(a) If during the Option Term (i) any Seller desires to Transfer
(as hereinafter defined) its Property or (ii) any Seller receives a bona fide
offer to Transfer such Property, then prior to offering such Offered Property
(as hereinafter defined) for Transfer, or accepting an offer for such Offered
Property (as hereinafter defined) for Transfer, such Seller shall give Buyer
notice (the "Offer Notice") specifying the purchase price and the other material
terms and conditions pursuant to which such Seller is willing to Transfer the
Offered Property. As used herein, a "Transfer" is to sell, convey, assign,
exchange or otherwise transfer to an unrelated third-party all or any part of
such Property or interest therein (other than (i) a bona fide
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arm's length space lease for actual occupancy by the tenant thereunder, (ii) a
space lease other than at arm's length for actual occupancy by the tenant
thereunder provided Buyer shall have approved such lease in advance of its
execution and delivery by Seller, which approval will not be unreasonably
withheld provided such lease is with a party and on terms Buyer, in its sole
discretion, deems to be commercially reasonable in the circumstances
(collectively, a "Permitted Lease")), including any lease other than a
Permitted Lease, any option or any transfer of air rights or of zoning rights,
(such Property or interest therein or part of a Property or all Property
intended to be owned as of the closing of transfer of partnership interests is
herein called an "Offered Property").
(b) Upon the giving of the Offer Notice, Buyer shall have the
right (the "Right of First Offer"), exercisable by notice (the "Acceptance
Notice") delivered to the Seller no later than thirty (30) days after the
giving of the Offer Notice together with copies of all of the Development
Related Agreements (defined in Exhibit "A"), Leases (defined in Exhibit "A")
and Service Agreements (defined in Exhibit "A") pertaining to the Offered
Property and other requested materials (including in the case where the Offered
Property is PI Property, a true and correct copy of the applicable PI Property
Partnership agreement and its recent tax returns for the three year period prior
to the Offer Notice), to acquire the Offered Property in accordance with the
terms and conditions of the Offer Notice.
(c) If Buyer delivers an Acceptance Notice within the
prescribed time period, then the Acceptance Notice, together with the Offer
Notice, shall be deemed to be an agreement of sale and purchase, on the terms
and conditions of the Offer Notice.
(d) If Buyer does not deliver an Acceptance or an Exercise
Notice with respect to the Offered Property to Seller within the prescribed
thirty (30) day period, the Seller shall be entitled to Transfer the Offered
Property to an unrelated third party free of any rights of Buyer under this
Agreement on terms no less favorable to Seller than those specified in the
Offer Notice, and upon such Transfer, Buyer's rights under this Agreement with
respect to the Offered Property shall automatically terminate. If the Seller
does not enter into a binding agreement to consummate such Transfer (which
agreement will be deemed binding notwithstanding customary conditions to the
obligations of parties thereunder) within six (6) months after the expiration
of the time for Buyer to give an Acceptance Notice or if the Seller does not
complete such Transfer within three (3) months after the expiration of the time
for consummating the offer set forth in the Offer Notice (or, if no such time
is specified in the Offer Notice then within nine (9) months after the
expiration of the time for Buyer to give an Acceptance Notice), then Buyer's
rights hereunder with respect to such Offered Property shall be deemed
reinstated.
(e) The term "Transfer" as used in this Agreement shall not
include (i) the grant of any commercially reasonable easement or right of way,
(ii) the grant or imposition of any commercially reasonable covenant, condition
or restriction, (iii) the grant of a mortgage or deed of trust or the creation
of any security interest to secure a bona fide loan, (iv) dedication to a
governmental body or public utility, (v) any execution upon any mortgage, deed
of trust, pledge agreement or security interest, (vi) any conveyance in-lieu-of
foreclosure, (vii) any conveyance of a Fee Property in-lieu-of condemnation,
or (viii) any transfer, lease, encumbrance or any matter described in the
preceding clauses (i) through (vii) carried out by a PI Property
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<PAGE> 329
Partnership with respect to its property. Nor shall "Transfer" include any
transfer by a Seller to a party other than an unrelated third party, provided,
however, that any such transfer to a party other than an unrelated third party
shall be under and subject to the rights of Buyer hereunder and the transferee
shall assume and promise to observe and perform the covenants and obligations
of its transferror hereunder. A Seller shall give Buyer not less than
forty-five (45) days prior written notice of a conveyance in-lieu-of
foreclosure or a conveyance in-lieu-of condemnation.
3. Access to Properties and Documents.
Each Seller shall from time to time, upon the request of Buyer,
furnish to Buyer, at Buyer's expense, copies of all Development Related
Agreements, Leases, Service Agreements (all as defined in Exhibit "A") and such
other documents, instruments and records in such Seller's possession as Buyer
may reasonably request, and each Seller shall afford Buyer access to the Fee
Properties and the PI Property Partnership Real Estate (as defined in Paragraph
9 below) and to Seller's books and records pertaining thereto, for purposes of
inspecting same and causing surveys and audits to be performed, all at Buyer's
expense. Except for permitting access to the foregoing by its trustees,
employees, partners, attorneys, accountants and advisors, Buyer will use
reasonable efforts to preserve the confidentiality of any of the foregoing
which have not been made public by a Seller.
4. Merger into Agreement of Sale.
If Buyer gives an Exercise Notice or an Acceptance Notice then
Buyer's rights under this Agreement with respect to the Property which is the
subject of the Agreement of Sale resulting from such Exercise Notice or
Acceptance Notice shall be deemed merged into such Agreement of Sale and shall
be extinguished, but shall retain the priority of this Agreement.
5. Continuing Rights.
The exercise or the non-exercise by Buyer of the Right of First
Offer/Refusal to acquire any Property or Properties pursuant to the terms of
this Agreement shall not affect Buyer's continuing rights under this Agreement
as to Properties which were not the subject matter of a prior Offer Notice.
6. Notices.
(a) Each notice to be given pursuant to this Agreement shall be in
writing and shall be deemed to have been properly given or served by deposit of
such with the United States Postal Service certified mail, return receipt
requested, postage prepaid or with a nationally recognized overnight courier
for next business day delivery and addressed as hereinafter provided.
(b) Any such notice shall be effective upon the earlier of (i)
actual receipt or refusal to accept delivery by addressee or (ii) two business
days after deposit thereof at any main or branch of the United States Postal
Service or (iii) the first business day after deposit with nationally
recognized overnight courier. Rejection or other refusal to accept or the
inability to deliver because of a changed address or status of which no written
notice was given
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shall be deemed to be receipt of the particular notice sent. By giving to the
other party entitled to notice hereunder a notice pursuant to the provisions of
this Section, the party entitled to notice shall have the right from time to
time during the term of this Agreement to change the address(es) thereof and to
specify as the address(es) thereof any other address(es) within the United
States of America.
Each notice to Buyer or Sellers shall, in the case of a notice to
Buyer, specify the name of the Independent Trustees of Buyer, or in the case of
a notice to a Seller, specify the applicable Seller, and shall be addressed as
follows:
27600 Northwestern Highway
Suite 200
Southfield, MI 48034-2137
7. Subordination.
This Agreement is and shall be subject and subordinate at all
times to the lien of any mortgage, deed of trust and/or other encumbrance
affecting the Properties, or any part thereof permitted under Paragraph 2(e),
to any Permitted Leases, and to the effect of any covenants, conditions,
restrictions, easements or other matters of record heretofore or hereafter
placed upon the Property or any part thereof permitted under Paragraph 2(e)
(such liens and matters of record are collectively referred to as a "Prior
Interest"), all automatically and without the necessity of any further action
on the part of Buyer to effectuate such subordination. Buyer shall, at Seller's
request, execute, acknowledge and deliver such further instruments evidencing
such subordination as shall be desired by Seller or the holder of a Prior
Interest.
8. Term. This Agreement shall expire ten (10) years from the date
hereof.
9. Consequences of a Sale of PI Property Partnership Real Estate.
If any PI Property Partnership shall wish to sell any real estate owned by it
(the "PI Property Partnership Real Estate") to a third party unrelated to the
Seller or Sellers which own PI Property in the PI Property Partnership (whether
or not such Transfer may be to a party related to one or more other partners in
such PI Property Partnership), the Seller or Sellers which own PI Property in
the PI Property Partnership may, but need not, cause the PI Property
Partnership to issue to Buyer an Offer Notice under paragraph 2 hereof, as if
such PI Property Partnership Real Estate was a Fee Property hereunder, and, in
that event, Buyer may issue an Acceptance Notice within the time and in
accordance with the provisions of paragraph 2. If a PI Property Partnership
shall have issued an Offer Notice hereunder, Buyer shall not timely issue an
Acceptance Notice, and the PI Property Partnership shall enter into a binding
agreement and complete a Transfer such that if the PI Partnership Real Estate
were Fee Property hereunder, Buyer's rights thereto would terminate and would
not be reinstated pursuant to subparagraph 2(d) hereof, then Buyer will have
no further right or option with respect to the PI Property in such PI Property
Partnership, but otherwise all rights of Buyer hereunder shall remain in
effect. In the event of any Transfer by a PI Property Partnership of its PI
Property Partnership Real Estate which is not the subject of an Offer Notice
under this paragraph, the Seller or Sellers who own PI Property in such PI
Property Partnership shall be obligated to pay to Buyer, contemporaneous with
their receipt of their pro rata share of the net sales proceeds of such sale
(as determined under the terms of the
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partnership agreement of the PI Property Partnership), the amount by which the
pro rata share of the net sales proceeds exceeds such Seller's "Net Cash
Investment" (as defined in Exhibit "A" attached hereto) in such PI Property.
10. Successors and Assigns.
(a) The terms and provisions of this Agreement shall be
binding upon the Sellers, and their successors and assigns, and shall inure to
the benefit of Buyer and its successors.
(b) Buyer shall have no right to assign or pledge its
rights under this Agreement, but Buyer may direct that the conveyance of the
Property at Closing be made to an Affiliate of Buyer.
11. Miscellaneous.
(a) This Agreement and the obligations of the parties
shall be interpreted, construed and enforced in accordance with the internal
law of the State of Michigan, without regard to the conflicts of law principles
thereof.
(b) If any provision of this Agreement shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such provisions to any other circumstance shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
(c) This Agreement constitutes the entire Agreement of
Seller and Buyer with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought.
(d) All personal pronouns used in this Agreement, with the
use in the masculine, feminine or neuter gender, shall include all other
genders; the singular shall include the plural; and the plural shall include
the singular. Titles of Paragraphs in this Agreement are for convenience only,
and neither limit nor amplify the provisions of this Agreement.
(e) This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall comprise but a single instrument.
(f) All exhibits and schedules attached to this Agreement
are incorporated by reference into and made a part of this Agreement.
(g) The obligation of each Seller hereunder is several and
no Seller shall have any liability for the actions or failure to act of any
other Seller.
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12. PI Property Partnership - Consent of Other Partners.
Buyer hereby acknowledges that the exercise by Buyer of its
rights hereunder as to PI Property may, in the case of some or all PI Property
Partnerships, require approval of one or more other partners of such PI
Property Partnership. Seller(s) will not seek such approval until receipt of an
Exercise Notice or an Acceptance Notice, but thereafter each Seller of PI
Property promises to use commercially reasonable efforts to obtain such
approvals, but Seller shall not be required to pay money or other consideration
to obtain such approvals except that Seller will pay normal fees and expenses
of counsel and such normal overhead costs as may be necessary. The obligations
of Seller and Buyer to consummate Closing as to each PI Property shall be
conditioned upon the grant of such approvals of other partners of the PI
Property Partnership in question as may be necessary under the agreements
governing such PI Property Partnership.
13. Recording Memorandum of Option For Fee Properties; Security
Interest in PI Properties.
(a) Seller will execute, acknowledge and deliver to Buyer
for recording at Buyer's expense, a memorandum in recordable form for each Fee
Property of Seller, confirming the existence and term of this Agreement, and
incorporating by reference the complete legal description of such Fee Property.
Each such memorandum shall provide that, if any Seller shall wish to undertake
any mortgage financing, lease, transfer of any interest in a Fee Property or
similar transaction, and provided such transaction is one which the Seller in
question is entitled to undertake hereunder free and clear of, or senior to,
the option and rights granted to Buyer hereunder, then this Agreement and all
options and rights of Buyer hereunder shall be automatically subject and
subordinate thereto, without the need of any further act or writing. Further,
if any Seller shall wish to enter into any transaction described in the
preceding sentence or any transaction permitted hereunder by reason of the
approval of Buyer of such transaction, then Buyer will, upon request of such
Seller, execute, acknowledge and deliver to such Seller, for recording at such
Seller's expense, appropriate instruments of release or subordination of this
Agreement and the options and rights of Buyer hereunder.
(b) Contemporaneous with the execution of this Agreement,
each Seller which is the holder of a PI Property is executing and delivering to
Buyer UCC Financing Statements, form 1, to perfect Buyer's security interest in
such Seller's obligation to remit to Buyer the proceeds of sale described in
Paragraph 9 of this Agreement above. This Agreement constitutes a security
agreement under the terms of the Uniform Commercial Code and Sellers
acknowledge and agree that Sellers are receiving value under the terms of the
Master Agreement. Each Seller shall execute, deliver, file and refile any
financing statements or continuation statements which Buyer may require from
time to time to confirm the lien of Buyer's security interest and upon default
of a Seller to remit to Buyer the proceeds of sale, as required under Paragraph
9 above, Buyer shall have all of the rights and remedies granted to a secured
party under the Uniform Commercial Code. The security interest granted hereby
shall be subordinate to any security interest in any PI Property granted by a
Seller in accordance with clause (iii) of Paragraph 2(e) hereof, automatically
and without the need of any further act or writing, and Buyer, notwithstanding
that such subordination is automatic, will execute and deliver upon
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request forms UCC-3 or other documents which may be necessary or desirable to
evidence or confirm such subordination.
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IN WITNESS WHEREOF, intending to be legally bound, the parties have
caused this Agreement to be executed on the day and year first above written.
BUYER:
RAMCO GERSHENSON PROPERTIES, L.P., a Delaware
limited partnership, by its general partner
By: Ramco Gershenson Properties Trust, a Maryland
Trust
By:
-------------------------
SELLERS:
Joinder of Ramco Principals
---------------------------
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EXHIBIT A
OPTION TERMS AND CONDITIONS
1. Sale and Premises.
(a) In the case of a Fee Property, Seller shall sell and
convey to Buyer and Buyer shall purchase from Seller, upon the terms and
conditions hereinafter set forth:
(i) The land identified in the Acceptance Notice or
the Exercise Notice and the buildings and improvements located thereon together
with (A) all easements, rights-of-way or use, privileges, licenses,
appurtenances, interests and other rights of Seller appurtenant to or
benefitting the land; (B) all right, title and interest of Seller in and to any
land lying in the bed of any streets, roads, or avenues opened or unopened,
existing or proposed, vacated or hereafter to be vacated, public or private in
front of, behind or adjoining the land and also as they extend beyond the land
for ingress, egress and regress to or from the Premises or any part thereof and
for the installation, replacement, maintenance and use of utility facilities;
(C) all right, title and interest of Seller in and to any award made or to be
made and in and to any unpaid award for taking of or damage to the land,
buildings or improvements occurring after the date of Buyer's Exercise Notice
by reason of change of grade of any street, road, highway, avenue or alley, and
Seller agrees to execute and deliver to Buyer, at Closing (defined below), or
thereafter, on demand, all proper instruments for the conveyance of such title
and the assignment and collection of any such award; (D) all of Seller's rights
to connect with and to utilize, for service to the land, buildings or
improvements or any part thereof, any private or public utility facilities as
may now or hereafter be within or without the boundaries of the land; as well
as all and singular the waters, water courses, rights, liberties, privileges,
hereditaments and appurtenances whatsoever belonging to the land or in any way
appertaining and the reversions and remainders, rents, issues and profits
thereof; and (E) all plans, specifications, permits and approvals, financing
commitments, leases or agreements to lease, architects' contracts, construction
contracts and all other rights and property of such Seller related to such
Property or the proposed development (collectively, the "Development Related
Agreements") (items (A)-(E) above are collectively defined as, the "Premises");
and
(ii) The fixtures, furnishings, equipment and other
items of personal property owned by Seller on the date of the Offer Notice, if
any, and otherwise on the date of the Exercise Notice and located on and used
in connection with the operation of the Premises (the "Personal Property").
(b) In case of a PI Property, Seller shall sell and convey
to Buyer and Buyer shall purchase from Seller, upon the terms and conditions
hereinafter set forth all of Seller's right and interest in the PI Property
Partnership, including, without limitation, all right, title and interest of
Seller in (i) all distributions by the PI Property Partnership after the
Closing Date of cash or other assets from operations, capital transactions,
sales, refinancings, liquidation or any other source, which interest in such
distributions shall not be subordinate to any superior right to distributions
or payments of any type to any partners of a Seller or Affiliates of a Seller
or
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partners of a Seller, including return of capital (but excluding repayment of
bona fide loans not included in equity for purposes of determining Net Cash
Investment); (ii) all profits and losses incurred by the PI Property
Partnership after the Closing Date; and, (iii) all capital of the PI Property
Partnership. At Closing, Seller shall deliver to Buyer duly executed originals
of such Amendment (the "Partnership Amendments") to the Partnership Agreement
of the PI Property Partnership and [Certificate of Limited Partnership]
[Articles of Co-Partnership] of the PI Property Partnership as are necessary to
make the provisions of this Agreement a part thereof. Buyer will, at Closing,
assume the obligation of Seller as a partner in the PI Property Partnership
pursuant to the partnership agreement and Partnership Amendments affecting such
PI Partnership disclosed to Buyer, and Buyer will agree to defend, indemnify
and hold harmless Seller from and against any and every manner of loss, cost,
damage or expense arising by reason of any failure of Buyer to observe or
perform any covenant or obligation assumed by Buyer at Closing.
2. Purchase Price.
The purchase price (the "Purchase Price") to be paid by Buyer to
Seller for a Property shall be the lesser of (i) a Seller's Net Cash Investment
in such Property determined as described below as of the Closing Date and (ii)
the fair market value of the Seller's interest in such Fee Property or PI
Property determined as described below as of the Closing Date.
(a) The "Net Cash Investment" is defined as the difference between
(i) the sum of (A) the federal and state income taxes payable by a Seller as a
direct consequence of the Transfer to Buyer and (B) the aggregate equity
including closing costs contributed by such Seller in the Fee Property or, in
the case of a PI Property, to the PI Property Partnership and (ii) the
aggregate net refinancing proceeds or distributions from other capital
transactions received or distributed to such Seller, and the proceeds of any
condemnation awards or insurance policy recoveries received by a Seller and not
used for restoration or to reduce a loan secured on the property to which the
award relates. In no event shall the Net Cash Investment be less than $10.00.
If the parties cannot agree to the amount of the Net Cash Investment, it shall
be determined conclusively by the "Big Six" accounting firm engaged by Buyer at
the time of Buyer's Exercise Notice (or if Buyer is not then engaging a "Big
Six" accounting firm, such other accounting firm reasonably acceptable to the
Seller) and the costs of such determination shall be split between Seller and
Buyer.
(b) The fair market value of a Property ("FMV") shall be determined
by agreement of Buyer and Seller. If Buyer and Seller cannot agree to the FMV,
the FMV shall be determined as follows: within forty-five (45) days after the
date of the Exercise Notice, Buyer and Seller shall each submit to the other
the written appraisal of a professional M.A.I. appraiser who shall have been
engaged in the practice of commercial real estate appraisal in the area where
the property is located for at least five (5) years ("Qualified Appraiser")
certifying the fair market value, as of the Closing Date, of a 100% undivided
interest in fee simple title to the Fee Property or the PI Property Partnership
Real Estate, as the case may be. The two appraisers shall use their best
efforts to resolve in good faith any difference between the two appraised
values. If they are able to resolve all differences, the value they mutually
agree upon shall constitute the FMV. If the two appraisers are unable to
resolve all differences within sixty (60) days after the date of the Exercise
Notice, the two Qualified Appraisers shall mutually appoint a third Qualified
Appraiser who shall not prepare a written appraisal but shall choose one
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of the other appraisals and the FMV shall be the appraised value set forth in
the chosen appraisal. If the two Qualified Appraisers cannot agree on a third
Qualified Appraiser within seventy (70) days after the date of the Exercise
Notice, Buyer and Seller shall immediately submit the dispute on the selection
of the third Qualified Appraiser for binding arbitration in the county of
Michigan in which the Fee Property or the PI Property Partnership Real Estate
(as applicable) is located or such other place as Buyer and Seller may mutually
agree upon by the American Arbitration Association (or its successor or most
newly analogous organization if it is not then in existence) for resolution,
each party agreeing to act with diligence and cooperation to arrive at a prompt
solution by that body. Buyer and Seller shall pay the cost of their own
Qualified Appraiser, and Buyer and Seller will each pay one-half of the costs
of the third Qualified Appraiser and any arbitration proceedings in the event
of the failure to select a third Qualified Appraiser. In the case of a PI
Property, the FMV shall be the product of the FMV of the PI Property
Partnership Real Estate multiplied by the Seller's percentage interest in such
PI Partnership, and then multiplied by the PI Property Partnership's percentage
ownership in the PI Property.
(c) The Purchase Price shall be paid by Buyer to a Seller
at Closing by any of the following methods designated by the Seller:
(i) The delivery to the Seller of a Bank
treasurer's check of a member Bank of The New York Clearing House, payable to
the order of the Seller or, at Seller's option, the Title Insurance Company
check or by wire or debit and credit transfer of immediately available same day
United States Federal Funds to one or more accounts to be designated by Seller,
or
(ii) Subject to any securities laws limitations, by
the issuance of OP Units convertible into the number of Shares with a value
equal to the Purchase Price as of the Closing Date.
3. Closing.
(a) Closing shall be held on the date ("Closing Date")
which is ten (10) business days after the FMV of the Property is determined
pursuant to Paragraph 2 above at the principal place of business of Buyer.
(b) Closing is the event ("Closing") during which, among
other things, the Buyer shall pay the Purchase Price to the Seller for the
Property and the Seller shall deliver to the Buyer the Deed and Bill of Sale
(both defined below), in the case of a Fee Property, and the PI Assignment and
Assumption (defined below), in the case of a PI Property, and such other
documents or instruments as may be required pursuant to this Agreement.
4. Condition of Title.
(a) In the case of a Fee Property, fee simple title to the
Premises shall be conveyed by Seller to Buyer at the completion of Closing by a
deed (the "Deed") containing Seller's special warranty, excluding the Permitted
Encumbrances from such warranty. Title to the Personal Property shall be
conveyed by Seller to Buyer at the completion of Closing by a bill of sale
("Bill of Sale") containing Seller's warranty, excluding the Permitted
Encumbrances from
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such warranty. In the case of a PI Property, title shall be conveyed by an
Assignment and Assumption Agreement signed by Seller and Buyer ("PI Assignment
and Assumption") which shall include customary indemnifications for matters
arising before and after the Closing Date exchanged between Buyer and Seller
and attach as an exhibit the executed Partnership Amendments described in
subparagraph 1(b) above under which Buyer shall be admitted as a partner of the
PI Property Partnership.
(b) Title to a Fee Property shall be such as will be insured
as good and marketable (at Buyer's expense) by a title insurance company of
Buyer's choice (the "Title Insurance Company") at regular rates pursuant to the
standard stipulations and conditions of the then current ALTA Policy of Owner's
Title Insurance, free and clear of all liens (including any then existing
environmental liens) and encumbrances, except for the Permitted Encumbrances.
Title to a PI Property shall be good title by which the Seller shall Transfer
the full and legal beneficial ownership of the PI Property free and clear of
all pledges, liens, claims, restrictions and encumbrances. In the case of a PI
Property, Buyer shall obtain at Buyer's expense a Fairways Endorsement and
Non-imputation Endorsement to the existing PI Property Partnership owner's
title policy. Sellers agree to execute such affidavits as the Title Insurance
Company may require to issue those endorsements. Title to the PI Property
Partnership Real Estate shall be good and marketable and free and clear of all
liens except for Permitted Encumbrances and except for mortgage debt, which may
encumber the PI Property Partnership Real Estate.
(c) The term "Permitted Encumbrances" shall mean the
following, but shall not include any matter or thing created, permitted or
suffered by Seller in violation of this Agreement:
(1) All liens for unpaid real estate taxes and water
and sewer charges to be apportioned at Closing, all special assessments payable
by Buyer pursuant to subparagraph 5(e) below and all installments of any
special assessment, in each case, not yet due and payable.
(2) All present and future zoning, building,
environmental and other laws, ordinances, codes, restrictions and regulations
of all governmental authorities having jurisdiction with respect to the
Premises and any municipal land development agreements or conditions, zoning
variances and special exceptions.
(3) All rights, easements and agreements, whether or
not of record, for the erection and/or maintenance of water, gas, steam,
electric, telephone, sewer or other utility pipelines, poles, wires, conduits
or other like facilities, and appurtenances thereto, over, across and under the
Premises and all other matters of record other than monetary liens (unless such
monetary lien encumbers PI Property Partnership Real Estate as described in
subparagraph 4(b) or is otherwise described in subparagraph 4(c)(1) above).
(4) Any state of facts which would be shown on or by an
accurate current survey of the Premises and/or a physical inspection thereof.
(5) Rights of tenants as tenants only under the terms
and conditions of all Permitted Leases in effect at the date of Closing.
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(6) Any outstanding violations of building, fire, sanitary,
environmental, housing and similar laws, ordinances, rules, regulations and
orders of governmental authorities having jurisdiction over the Premises.
(7) All other matters of record provided they do not
constitute a "Transfer" under the Option Agreement to which this Exhibit is
attached.
5. Possession, Assignment of Agreements and Leases For Fee Property
Transfer.
(a) In the case of a Fee Property, possession of the Premises
and the Personal Property is to be given by Seller to Buyer at the completion
of Closing by delivery of the Deed and the Bill of Sale and by assignment of
the then existing Permitted Leases for the Premises, subject to the rights of
any third-party brokers to be paid leasing brokerage commissions out of the
installments of rentals paid after Closing or in connection with exercise by
the tenant after Closing of any renewal or expansion options ("Permitted
Leasing Commissions"). Seller shall, following delivery of the Exercise Notice
or Acceptance Notice and prior to Closing, not enter into new leases for
portions of the Premises then vacant and for portions of the Premises which
may, pursuant to notice given by any tenant, by reason of any tenant's default,
or by reason of the expiration of the term of any existing lease become vacant,
without Buyer's prior approval. All such new leases approved by Buyer, leases
existing prior to the date of the Option Agreement and Right of First
Offer/Refusal to which this Exhibit "A" is attached and then still existing and
the then existing Permitted Leases are herein called the "Leases". Seller
shall represent and warrant that following the Offer Notice, if any, and
otherwise following receipt by Seller of the Exercise Notice, (i) at the time
of Closing, Seller shall have accepted no prepayment of rent under any of the
Leases without Buyer's consent, except for those indicated on a rent roll (the
"Rent Roll") which Seller will deliver to Buyer ten (10) days before Closing,
(ii) Seller shall not have terminated any of the Leases by agreement with the
tenant (except by reason of a default by the tenant thereunder or except for
notices given to indicate the landlord's intention not to permit the term of
the lease to continue or be renewed for an additional term), (iii) there are no
material inaccuracies in the Rent Roll and (iv) the copies of the Leases, which
shall be delivered by Seller to Buyer within fifteen (15) days following the
Acceptance Notice or the Exercise Notice, are true, correct and complete copies
thereof.
(b) In the case of a Fee Property, Seller shall also assign to
Buyer at the Closing, all then existing assignable service agreements affecting
the Premises (hereinafter collectively called the "Service Agreements") and
Buyer shall assume the obligations under the Service Agreements arising after
Closing.
(c) In the case of a Fee Property, at Closing, Buyer shall
execute and acknowledge an agreement (the "Development Assumption Agreement")
wherein Buyer shall assume all of the obligations of Seller thereafter
accruing under those Development Related Agreements that have been forwarded to
Buyer by Seller.
(d) In the case of a Fee Property, at Closing, Buyer shall
also execute and acknowledge an agreement (the "Assumption Agreement") wherein
Buyer shall assume all
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of the obligations of Seller thereafter accruing under the Leases (including,
without limit thereto, obligations for the return of any security deposits and
the payment of brokerage commissions) and the Service Agreements, and shall
agree to indemnify, defend and save Seller harmless from and against all
claims, liability, costs and expenses arising after Closing which may be
asserted against Seller or which Seller may reasonably incur or suffer, arising
out of or with respect to the Leases or the Service Agreements. The Assumption
Agreement shall also provide that Buyer shall not agree to any extension or
renewal of any of the Leases not provided for therein, but shall, instead, if
it chooses to continue the occupancy rights of a tenant, provide for any
extensions of existing tenancies by means of new leases which will contain no
reference to Seller.
(e) Except as provided in subparagraph 6(a)(x) below, each
Seller shall pay all assessments against the Premises or any part thereof for
improvements or other work assessed, commenced or completed prior to the
Closing Date and shall indemnify, defend and save Buyer harmless from and
against any claims therefor or any liability, loss, cost or expense arising
therefrom.
6. Fee Property Apportionments. The following apportionments shall
be made with respect to the Fee Property:
(a) (i) Taxes, Rents, etc. Real estate taxes (on the
basis of the due dates of the tax bills for the period for which such taxes are
assessed) on the Fee Property, personal property taxes on the Personal
Property, minimum water and sewer rentals, rents, including without limitation
expense pass throughs, percentage rents, income from and expenses for
electricity and other sums paid by tenants, licensees and concessionaires and
collected by Seller prior to Closing under the Leases, payments due under the
Service Agreements which are to be assigned to Buyer, prepaid license fees and
other charges for licenses and permits for the Fee Property which will remain
in effect for Buyer's benefit after Closing, rental under any ground lease,
municipal rubbish removal charges, lease rejection awards made in any
bankruptcy proceedings of a tenant, and prepaid insurance premiums for
insurance which will remain in effect for Buyer's benefit after Closing, if any,
shall be apportioned pro rata between Seller and Buyer on a per diem basis as of
midnight on the day before the Closing Date, so that Seller shall bear all
expenses with respect to the Fee Property and benefit from all items of income
with respect to the Fee Property through the day before the Closing Date. To the
extent that the amounts of the items to be adjusted are not reasonably
ascertainable as of the Closing Date, they shall be adjusted as promptly after
the Closing Date as the amounts thereof are ascertained.
(ii) All rents and other sums collected by Buyer
after the Closing Date, up to the respective amounts currently due Buyer from
time to time, will be retained by Buyer and applied on account of the rents and
other sums due to Buyer. At Closing, Seller shall identify all tenants which
are in arrears in the payment of rent or other sums due under the Leases on the
Closing Date. If any tenant shall pay to Buyer after the Closing Date a sum in
excess of all rents and other sums which have accrued to Buyer, and which
excess sum is on account of arrearages which became due prior to Closing, Buyer
will remit to Seller such excess net of a proportionate share of the cost of
collection based on the relative amounts recovered by each of Seller and Buyer,
to be applied on account of the arrearages due to Seller. Seller shall not
bring any suit or other proceeding, on behalf of Seller, against any tenant
currently in
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occupancy under the Leases after the Closing Date on account of rental
delinquencies. Buyer assumes no obligation to collect or enforce the payment of
any such moneys which may be owing to Seller. If Buyer employs an agent to
collect rent under the Leases after Closing, such agent shall have the right to
deduct and retain from Seller's share of any rent or other payments received by
Buyer after the Closing Date a pro rata share of the compensation payable to
such agent by Buyer, based on the relative amounts recovered by each party.
(iii) Any refunds received by Buyer under any of the Service
Agreements on account of payments which are applicable to periods prior to the
Closing Date shall be apportioned by Buyer when received and the portion
thereof attributable to periods prior to the Closing Date shall be paid by
Buyer to Seller.
(iv) All amounts collected from tenants pursuant to
provisions in the Leases (or in any reciprocal easement agreements) on account
of real estate taxes shall be transferred to Buyer on the Closing Date. Seller
shall be responsible for the collection of all such amounts up to the Closing
Date and Buyer shall be responsible for the collection of all such amounts from
and after the Closing Date. At Closing, the difference between the aggregate
amount collectable by Seller under the Leases and reciprocal easement agreements
on account of real estate taxes for the tax period in which the prorated taxes
are due, and the amount of real estate taxes for the Fee Property for the tax
period in which the Closing Date occurs, shall be credited through a cash
adjustment to Seller or Buyer, as applicable.
(v) Common area maintenance expenses which by the terms of
the Leases (or any reciprocal easement agreements) are recoverable in whole or
in part from tenants of the Fee Property (or parties to reciprocal easement
agreements) shall be calculated on the basis of the actual expenses incurred by
the parties as of the Closing Date. Seller shall be responsible for the
collection of all such amounts up to the Closing Date and Buyer shall be
responsible for the collection of all such amounts from and after the Closing
Date. Seller and Buyer recognize that the common area maintenance expense
contributions made by tenants or parties to reciprocal easement agreements
during the month in which Closing occurs will be applied by Seller for the
common area maintenance expenses incurred for the Fee Property during the month
which precedes the month in which Closing occurs (the "Pre-Closing Month").
Notwithstanding such application, items of common area maintenance expense and
income shall be prorated as of the Closing Date, except that the parties shall
defer the cash adjustment to be made to Buyer which arises from Seller's
application of the common area maintenance expense contributions made during
the month in which Closing occurs to the expenses incurred during the
Pre-Closing Month until the year-end common area maintenance reconciliation is
made under the Leases. If Seller shall have failed to have paid common area
maintenance expenses incurred for any period prior to the Pre-Closing Month, or
if Seller shall have collected payments for such expenses for periods beyond
Closing, then there shall be a credit to Buyer in the form of a cash adjustment
for the amount of such expense or excess.
(vi) If the apportionment of any percentage rents,
"escalation" payments relating to operating expenses, merchant's association
dues or fees for promotion, income and expenses for electricity or other
payments received by Buyer after the Closing Date from a tenant under any of
the Leases on account of periods prior to the Closing Date or on account of
sums which are attributable to expenses incurred by the landlord for periods of
time
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prior to the Closing Date, cannot be precisely determined at the Closing Date,
Seller and Buyer shall reasonably estimate the apportionment of such sums pro
rata between Buyer and Seller on a per diem basis as of the Closing Date. A
post-closing adjustment shall be made, if necessary, between Buyer and Seller
for such apportioned items when the amounts thereof can be ascertained.
(vii) The apportionment of "percentage rent", and the amounts
due by Buyer to Seller, respectively, under each of the Leases for "percentage
rent", shall be made or paid with respect to the lease year (as defined in such
Lease) in which the Closing Date falls and the post-Closing adjustment shall be
made at the time that the accounting for the tenant's percentage rent
obligation for the lease year is determined under the Lease. The amount to be
apportioned shall be the total of the amounts collected by both Buyer and
Seller as percentage rent for such percentage rent lease year. Seller's portion
thereof shall be an amount which bears the same ratio to the total percentage
rent for the applicable percentage rent lease year as the number of days up to
but excluding the Closing Date in such percentage rent lease year shall bear to
the full number of days in such percentage rent lease year; and Buyer shall be
entitled to retain the remaining portion.
(viii) If the Fee Property is not separately assessed for real
estate tax purposes as of the Closing Date, the real estate tax assessment
attributable to the Fee Property shall be deemed to be that portion of the
total assessment of the buildings on the larger parcel with which the Fee
Property is assessed, which bears the same ratio to such total assessment of
buildings as the ground floor area of buildings on the Fee Property bears to
the total ground floor area of buildings on the larger parcel; and that portion
of the total assessment of the land constituting the larger parcel with which
the Real Property is assessed, which bears the same ratio to such total
assessment of land as the land area in the Fee Property bears to the total land
area in the larger parcel.
(ix) If bills for real estate taxes on the Fee Property have
not been issued as of the Closing Date, and if the amount of real estate taxes
for the then current tax fiscal year is not then known, the apportionment of
real estate taxes shall be made at Closing on the basis of the prior year's
real estate taxes and a post-Closing adjustment shall be made when the actual
amounts are ascertained.
(x) If, at Closing, the Fee Property or any part thereof is
affected by an assessment which is payable in installments of which the first
installment is then a charge or lien, or has been paid, then all unpaid
installments of such assessments shall be prorated between the parties as of
the date of Closing as follows: Seller shall be responsible for those
installments thereof for years prior to the year in which Closing occurs and
Buyer shall be responsible for those installments thereof for years following
the year in which Closing occurs; the installment due for the year in which
Closing occurs shall be prorated between the parties on a per diem basis.
(xi) Any credit due to Buyer pursuant to this Paragraph 7(a)
shall be paid in cash to Buyer at Closing and not applied as a credit against
the Contribution Price, and any credit due to Seller pursuant to this Paragraph
7(a) shall be paid by Buyer in cash to Seller at Closing as an addition to the
Contribution Price.
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(b) Security Deposits. The total sum of all tenant security deposits
listed on Exhibit "E", as updated at Closing, together with all interest earned
thereon as of the Closing Date which Seller is obligated to pay to tenants,
shall be given to Buyer or its designee at Closing and not as a credit against
the Contribution Price.
(c) Utility Meter Readings. At Closing, Seller shall pay all charges
for the water, electric, gas and other utility meters servicing the Fee
Property (other than meters measuring exclusively utility consumption which is
to be paid in full by tenants under Leases) apportioned on the basis of the
prior month's readings. When the charges for the month during which Closing
occurs are ascertained, the parties shall make any necessary post-Closing
adjustments. The apportionment of items of expense and income for tenant
contributions on account of utilities shall be handled in the same manner as
items of expense and income for tenant contributions for common area maintenance
are handled as described in subparagraph 7(a)(v) above.
(d) Transfer and Sales Taxes. Buyer shall pay at Closing all realty
transfer documentary fees, stamps and taxes imposed on the Deed, the conveyance
of the Fee Property or the transaction contemplated by this Agreement. Buyer
shall indemnify, defend and hold Seller harmless from and against any and all
liabilities arising from such taxes imposed in connection with the conveyance
of the Fee Property or the transaction contemplated by this Agreement. Ordinary
charges for recording instruments shall be paid at Closing by Buyer. Seller and
Buyer acknowledge and agree that the Personal Property to be transferred
hereunder is not being sold in the normal course of Seller's trade or business,
and agree to execute the appropriate exemption certificates for the purpose of
obtaining sales tax exemptions with respect to the transfer of the Personal
Property. Buyer shall be obligated to pay any sales tax which may be payable in
connection with the sale of the Personal Property if such sale is not exempt
from taxation.
(e) Tenant Improvement Costs. Unless otherwise provided in an Offer
Notice (in which case such Offer Notice shall control) Seller shall pay at or
prior to Closing all tenant improvement costs, tenant allowances and other bona
fide third party costs and expenses actually incurred for Leases entered into
on or before Seller's receipt of an Exercise Notice. Seller agrees to indemnify,
defend and hold Buyer harmless from and against any liability associated with
such costs. If Closing occurs, Buyer shall pay the unamortized portion
(amortized over the period rent is due under the Lease) of all tenant
improvement costs, tenant allowances, and other bona fide third-party costs and
expenses actually incurred in connection with procuring the tenant for those
Leases entered into after Seller's receipt of an Exercise Notice with Buyer's
approval.
6.1 PI Property Apportionments. Distributions to partners of a PI Property
Partnership with respect to the PI Property Partnership's fiscal year in which
Closing occurs will be pro-rated between Sellers and Buyer on a per diem basis
promptly following the close of such fiscal year and the making of the final
distribution with respect to such fiscal year by the PI Property Partnership.
Buyer will be credited with the day of Closing, and will be entitled to receive
from the PI Property Partnership all distributions made by it on and after the
day of Closing with respect to the PI Property acquired by Buyer at Closing. If
either party has received distributions with respect to such fiscal year in
excess of such party's share determined on a per
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diem basis, such party will pay such excess to the other promptly following the
close of such fiscal year and the determination of such excess.
7. Seller's Obligations With Respect to a PI Property Closing.
(a) In the case of PI Property, at the Closing each Seller shall
deliver to Buyer an opinion of counsel reasonably satisfactory to Buyer,
opining that:
(i) The PI Property Partnership is a partnership duly
organized, validly existing, and in good standing under the laws of its state
of formation, with full power, authority and legal right to own the PI Property
Partnership Real Estate and to carry on the business in the manner and in the
location which it is then in its business;
(ii) The PI Assignment and Assumption has been duly authorized
by and duly executed on behalf of the Seller and is binding upon and
enforceable against the Seller and the PI Property Partnership, subject only to
applicable laws regarding bankruptcy, insolvency and creditors rights;
(iii) To such counsel's knowledge, the Transfer of the PI
Property to Buyer will not result in any breaches of or defaults under any
agreement, document or obligation known to such counsel, to which Seller is a
party or by which Seller or the PI Property Partnership is subject or bound, or
result in any lien, claim or encumbrance upon or against the Seller or the PI
Property Partnership Real Estate;
(iv) To such counsel's knowledge, the consent of all persons,
if any, whose consent is required to the Transfer of the PI Property has been
obtained; and
(v) To such counsel's knowledge, there is no action, suit,
investigation or other proceeding pending or threatened which involves any
matter for which the PI Property might be subject or bound.
(b) As to clauses (iii), (iv) and (v) of the opinion letter described
in (a) above, if counsel shall set forth exceptions to the opinion rendered,
Seller will not by reason thereof be in default of its obligation to deliver
such opinion (although this is not intended to excuse any other default
hereunder which such exceptions may represent or reflect), and Buyer will have
the option to accept such opinion and to consummate Closing or to refrain from
doing so, and in the latter event the rights and options granted to Buyer under
the Option Agreement And Right of First Offer/Refusal to which this Exhibit "A"
is attached shall remain in effect as to the Property in question for the
remainder of the Option Term.
(c) Each Seller shall covenant, represent and warrant to Buyer (with
survival after Closing) in the PI Assignment and Assumption that:
(i) Seller has good title to the PI Property with full right,
power and authority to transfer and assign to Buyer the full and legal
beneficial ownership of the PI Property, free and clear of all pledges, liens,
claims and encumbrances;
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(ii) Seller has not pledged, hypothecated, encumbered, assigned
or transferred Seller's PI Property;
(iii) Seller has no claims of any nature against the PI Property
Partnership or the interest of any partner therein;
(iv) Seller has not incurred any debts or obligations on behalf
of the PI Property Partnership which will remain after Closing and the PI
Property Partnership Real Estate is not encumbered by any debt not disclosed
to Buyer; and
(v) All federal and state income tax liability resulting from
Seller's interest in the PI Property has been paid by Seller or otherwise
escrowed from the sales proceeds payable to the Seller.
8. Transfer Taxes.
Buyer shall pay all realty transfer taxes payable regarding
this transaction.
9. Buyer's Default.
If Buyer defaults under this Agreement at or prior to Closing
by failing to complete Closing in accordance with the terms of this Agreement or
in any other respect, then on the date specified for Closing (or sooner in the
event of an anticipatory breach) Buyer's Purchase Option and Right of First
Offer with respect to the Premises shall terminate and the Seller shall have no
further recourse against Buyer, provided, however, that if this Agreement shall
have resulted from the issuance by Seller of an Offer Notice and the issuance by
Buyer of an Acceptance Notice, then in addition to the termination of Buyer's
Purchase Option and Right of First Offer as to the Premises, the liability of
Buyer for default shall be the liability, if any, specified in the Offer Notice.
10. Seller Default.
If a Seller shall fail or be unable to perform in accordance
with this Agreement, then Buyer, shall have the right as its sole and exclusive
remedies to revoke the Exercise Notice or Acceptance Notice, or to obtain
specific performance of such Seller's obligations hereunder and each Seller
expressly acknowledges that its Property is unique and that specific
performance is an appropriate remedy for such Seller's default hereunder.
11. Fire or Other Casualty.
In the event that the Premises or the Personal Property, in the
case of a Fee Property, or the PI Property Partnership Real Estate, in the case
of a PI Property, shall be damaged or destroyed by fire, vandalism or other
casualty prior to the completion of Closing, Buyer may choose to complete
Closing hereunder and, in the case of a Fee Property, receive an assignment of
the proceeds of any insurance (or, if such proceeds have already been received
by Seller, Seller shall pay over to Buyer such proceeds at Closing, net of the
reasonable costs
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incurred by Seller to recover such proceeds and net of sums expended with the
approval of Buyer, not to be unreasonably withheld, to protect or restore the
Property) or Buyer may withdraw its Acceptance Notice or Exercise Notice.
Following Buyer's Acceptance Notice or Exercise Notice, Seller or the PI
Property Partnership, as applicable, will maintain in effect through Closing
its policies of property insurance with respect to the Fee Property or PI
Property Partnership Real Estate, as applicable.
12. Preparation of Deed and Assignment and Assumption.
The Deed and Bill of Sale, in the case of a Fee Property, and the PI
Assignment and Assumption, in the case of a PI Property, shall be prepared and,
if necessary, recorded at the expense of Buyer. At least ten (10) days prior to
the Closing Date, Buyer shall submit to Seller the Deed and the Bill of Sale,
in the case of a Fee Property, and the PI Assignment and Assumption in the case
of a PI Property, and a title insurance commitment issued by the Title
Insurance Company.
13. Buyer's Right of Entry; Due Diligence Period.
(a) Buyer and Buyer's agents, consultants and representatives,
shall have the right, from time to time, after giving the Acceptance Notice or
the Exercise Notice, during usual business hours, to enter upon the Premises or
(with the approval of the PI Property Partnership, which approval the Seller(s)
in question will use commercially reasonable efforts to obtain, but Seller
shall not be required to pay money or other consideration to obtain such
approvals except that Seller will pay normal fees and expenses of counsel and
such normal overhead costs as may be necessary) the PI Property Partnership
Real Estate, as applicable, for the purpose of inspection, preparation of
plans, making of test borings, taking of measurements, making of surveys and
generally for the reasonable ascertainment of the condition of the Premises or
the PI Property Partnership Real Estate, as applicable; provided, however, that
Buyer shall (i) give Seller prior written notice of the time and place of such
entry and permit a representative of Seller to accompany Buyer; (ii) restore
any or replace with appropriate material any soil or other material removed
during, such test borings; (iii) indemnify, defend and save Seller harmless
from and against any and all liabilities which Seller may suffer by reason of
such entry prior to Closing; and (iv) not enter into any space leased to third
parties or communicate with any tenant without Seller's prior written consent.
(b) With respect to environmental matters, Buyer and Buyer's
agents, consultants and representatives shall have the right, from time to
time, after giving Acceptance Notice or the Exercise Notice, during usual
business hours, to full access to the Premises or (with the approval of the PI
Property Partnership, which approval the Seller(s) in question will use
commercially reasonable efforts to obtain, but Seller shall not be required to
pay money or other consideration to obtain such approvals except that Seller
will pay normal fees and expenses of counsel and such normal overhead costs as
may be necessary) the PI Property Partnership Real Estate, as applicable, and
the operations conducted thereon for purposes of independent investigation;
provided, however, that Buyer shall (i) give Seller prior written notice of the
time and place of such entry and permit a representative of Seller to accompany
Buyer; and (ii) restore or replace with appropriate material any soil or other
material removed during any test borings. At Buyer's sole option, such
investigation may include, without limitation, such testing of the
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soil, groundwater, building components, tanks, containers and equipment on the
Premises or the PI Property Partnership Real Estate, as applicable, as Buyer or
Buyer's agents, consultants or representatives shall deem necessary or
appropriate to confirm the condition of the Premises or the PI Property
Partnership Real Estate, as applicable, and the compliance of the operations
conducted thereon. Buyer shall indemnify, defend and save Seller harmless from
and against any and all liabilities which Seller may suffer by reason of the
acts, or negligence or violation of law committed by Buyer or Buyer's agents,
consultants or representatives during the course of such testing.
(c) Prior to permitting any party to enter the Premises or the
PI Property Partnership Real Estate, as applicable, prior to Closing for the
purpose of performing any services or supplying any materials for which such
party could claim a mechanic's lien against the Premises or the PI Property
Partnership Real Estate, as applicable, or any part thereof, Buyer shall cause
to be delivered releases of mechanic's liens in form reasonably satisfactory to
Seller.
(d) At any time prior to sixty (60) days following the
Exercise Notice (the "Due Diligence Period"), Buyer may revoke its Exercise
Notice by written notice to Seller, whereupon the Purchase Option and the Right
of First Offer/Refusal will terminate as to the Premises or the PI Property, as
applicable. If this Agreement shall have resulted from the issuance by Seller
of an Offer Notice and the issuance by Buyer of an Acceptance Notice, then the
due diligence period, if any, and Buyer's termination right, if any, shall be as
set forth in the Offer Notice. Within fifteen (15) days following the
Acceptance Notice or the Exercise Notice (or such shorter time, if any, as may
have been provided for in the Offer Notice), Seller will furnish to Buyer the
Rent Roll and copies of all of the Leases and Service Agreements for the Fee
Property or PI Property Partnership Real Estate, as applicable, as of the date
of the Acceptance Notice or the Exercise Notice, together with a certificate
containing the representations and warranties set forth in clauses (iii) and
(iv) of subparagraph 5(a).
14. Condemnation.
If any part or parts of the Premises or the PI Property
Partnership Real Estate, as applicable, shall be taken by the exercise of the
power of eminent domain, this Agreement shall continue in full force and effect
and there shall be no abatement of the Purchase Price. In the case of a Fee
Property, Seller shall be relieved of its duty to convey title to the portion
so taken, but Seller shall, at Closing, assign to Buyer all of Seller's rights
and claims to any awards arising therefrom as well as credit the cash portion
of the Purchase Price with the amount of any money theretofore received by
Seller on account thereof, net of any expenses incurred by Seller, including,
without limit thereto, reasonable counsel fees, in collecting the award. If the
amount of the cash award collected by Seller prior to Closing net of such
expenses exceeds the amount payable by Buyer at Closing, Seller will pay the
excess to Buyer at Closing. With respect to any such taking after the date of
this Agreement, Seller shall furnish to Buyer a copy of the declaration of
taking promptly after Seller's receipt thereof.
15. Brokers.
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Buyer and Sellers each represent and warrant to the other that
it has dealt with no broker or other intermediary in connection with this
transaction or the Premises. The party in breach of the foregoing
representation and warranty shall indemnify, defend and save the other harmless
from and against any claim for commission or compensation by such broker or
other intermediary, as well as all costs and liabilities incurred by the other
by reason thereof.
16. Condition of Property.
The entire agreement between the Seller and Buyer with respect
to the Properties and the sale thereof is expressly set forth in this
Agreement, and the parties are not bound by any agreement, understandings,
provisions, conditions, representations or warranties other than as are
expressly set forth in this Agreement. Without in any manner limiting the
generality of the foregoing, Buyer acknowledges that at the expiration of the
Due Diligence Period, it and its representatives will have fully inspected the
Fee Property or the PI Property Partnership Real Estate, as applicable, and the
Development Agreements, the Service Agreements and the Leases, will then be
fully familiar with the physical and financial condition thereof, and that the
Premises, the Personal Property, or the PI Property Partnership Real Estate, as
applicable, the Development Agreements, the Service Agreements, and the Leases,
shall have been purchased by Buyer in an "as is" and "where is" condition as a
result of such inspection and investigations and not in reliance on any
agreement, understanding, condition, warranty or representation made by Seller
or any agent or employee of Seller (except as expressly elsewhere provided in
this Agreement) as to the condition thereof, as to any permitted use thereof,
or as to the income or expense in connection therewith, or as to any other
matter in connection therewith; and Buyer further acknowledges that no Seller
nor any party acting on behalf of a Seller has made or shall be deemed to have
made any such agreement, condition, representation or warranty, except as
expressly set forth in this Agreement.
(b) Between the date of the Exercise Notice or the Acceptance
Notice and the Closing, Seller shall perform all repairs to the Premises and
the Personal Property (and in the case of PI Property Partnership Real Estate,
cause such repairs to be made) required to maintain them in the same condition
as they are as of the date of the Acceptance Notice or the Exercise Notice, as
said condition shall be changed by wear and tear, eminent domain, damage by
fire or other casualty, or vandalism.
17. FIRPTA.
To inform Buyer that withholding of tax is not required upon
the disposition by Sellers of a United States real property interest or
partnership interest, the Sellers at Closing shall certify:
(i) Seller is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in
the Code and Income Tax Regulations);
(ii) Seller's U.S. employer identification
number/social security number is _____________________; and
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(iii) Seller's office address is: ___________
______________________________________________
______________________________________________
_______________________________.
Seller, understands that this certification may be disclosed to the Internal
Revenue Service by Buyer and that any false statement made here could be
punished by fine, imprisonment or both.
18. General Representations and Warranties.
To induce Buyer to enter into this Agreement, each Seller
hereby represents and warrants as follows:
(a) Organization
Each Seller that is a partnership is a partnership duly
organized, validly existing and in good standing under the laws of the State of
its formation with full power, authority and legal right to own its property
and assets and to carry on the business in the manner and in the locations in
which it has been and is now being conducted by it, and to engage in the
transactions contemplated by this Agreement. The Partnership Agreement of the
PI Property Partnership, in the case of a Seller that owns a PI Property, or of
the title holding partnership, in the case of a Fee Property (copies of which
have been certified and delivered to Buyer on the date hereof) is true,
complete and accurate, in full force and effect, represents the entire
agreement of the parties thereto and has not been modified or amended except as
specified.
(b) Authority; Binding Obligation
Each Seller has taken all action which may be
required by the Partnership Agreement, the laws of the State of its formation,
and all other applicable laws to authorize the execution, delivery and
performance of this Agreement, except that the partnership agreements of the PI
Property Partnerships may require the approval of other partners for the sale
or transfer of partnership interests by Sellers, which approvals may not yet
have been obtained, in which case the Seller(s) in question, promptly following
the exercise of an Option the Closing of which requires such approval, will use
commercially reasonable efforts to obtain such approvals but such Seller(s)
shall not be required to pay money or other consideration to obtain such
approvals except that such Seller(s) will pay normal fees and expenses of
counsel and such normal overhead costs as may be necessary. This Agreement
constitutes the valid and binding obligation of Seller enforceable in
accordance with its terms.
(c) Payment of Taxes
Sellers and each of the PI Property Partnerships,
have filed all federal and state tax returns required to be filed, and all
taxes shown to be owing on such returns have been paid. Sellers and each of the
respective PI Property Partnerships have no knowledge of any deficiency or
assessment which may become due in connection with such taxes. All other taxes,
governmental levies or assessments affecting the premises or any portion
thereof to the extent due and payable have been paid.
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SCHEDULE 1
SCHEDULE OF PROPERTIES
I. Fee Properties
RIVER'S EDGE OFFICE BUILDING SOUTHFIELD, MICHIGAN
II. PI Properties
SUMMIT COMPLEX (SUMMIT NORTH WATERFORD, MICHIGAN
SUMMIT PLACE AND SUMMIT CROSSING)
LIVONIA TOWNE SQUARE LIVONIA, MICHIGAN
BAY TOWNE PLAZA SAGINAW, MICHIGAN
PARK PLACE SHOPPING CENTER SANDUSKY, OHIO
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Exhibit N
NORTH TOWNE
OPTION AGREEMENT AND RIGHT OF FIRST OFFER/REFUSAL
THIS AGREEMENT made this___ day of_____ , 1995, by and between RAMCO
LEWIS-ALEXIS ASSOCIATES, an Ohio general partnership hereinafter individually
referred to as "Seller"), and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware
limited partnership (hereinafter referred to as "Buyer").
W I T N E S E T H :
WHEREAS, certain Affiliates of Seller and Buyer are parties to a certain
Master Agreement dated as of April ___, 1995 (the "Master Agreement") and the
parties hereto are entering into this Agreement as contemplated under the Master
Agreement; capitalized terms used in this Agreement and not defined shall have
the meanings ascribed to them under the Master Agreement;
WHEREAS, Seller owns the percentage interest set forth opposite its name
on Schedule 1 in Lewis-Alexis Group, an Ohio general partnership
("Lewis-Alexis") which owns the parcel or parcels of land set forth on Schedule
1 (each of which partnership interest and any reductions or increases in the
partnership interest hereafter owned directly or indirectly by the Ramco
Principals or any Affiliate of the Ramco Principals in Seller or directly or
indirectly in Lewis- Alexis is individually referred to as a "Partnership
Interest" and all of which are collectively referred to as the "Partnership
Interests"). The term "Affiliate of the Ramco Principals" shall mean the spouse,
sibling, parent or child of any Ramco Principal, the spouse of any sibling,
parent or child of any Ramco Principal, any entity controlled by the Ramco
Principals or any of them and any employee of any such entity;
WHEREAS, Sellers desire to grant and Buyer desires to accept certain
options and rights of first offer and refusal regarding the Partnership
Interests on the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the payment of One Dollar ($1.00) to
each other, and of the mutual promises contained in this Agreement and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Sellers and Buyer covenant and agree, intending to be legally
bound, as follows:
I. Purchase Option.
Seller hereby grants to Buyer the option to purchase the Partnership
Interests of Seller set forth on Schedule 1 opposite Seller's name (the
"Purchase Option"), for the price and otherwise on the terms and conditions set
forth in Exhibit "A". The Purchase Option may be exercised only by written
notice of exercise (an "Exercise Notice") sent to Seller not later than ten (10)
years from the date of this Agreement (the "Option Term"). If Buyer shall timely
<PAGE> 353
exercise such option, then the Exercise Notice shall constitute an agreement of
sale for the Partnership Interests in question on the terms and conditions of
Exhibit "A" hereto, except to the extent such terms and conditions are altered
by agreement of the parties.
II. Right of First Offer/Refusal for Partnership Interests.
(a) If during the Option Term (i) Seller desires to Transfer (as
hereinafter defined) its Partnership Interest or (ii) Seller receives a bona
fide offer to Transfer such Partnership Interest, then prior to offering such
Offered Property (as hereinafter defined) for Transfer, or accepting an offer
for such Offered Property (as hereinafter defined) for Transfer, Seller shall
give Buyer notice (the "Offer Notice") specifying the purchase price and the
other material terms and conditions pursuant to which Seller is willing to
Transfer the Offered Property. As used herein, a "Transfer" is to sell, convey,
assign, exchange or otherwise transfer to an unrelated third-party all or any
part of such Partnership Interest or interest therein (such Partnership Interest
or interest therein intended to be transferred is herein called an "Offered
Property").
(b) Upon the giving of the Offer Notice, Buyer shall have the right
(the "Right of First Offer"), exercisable by notice (the "Acceptance Notice")
delivered to the Seller no later than thirty (30) days after the giving of the
Offer Notice together with copies of all of the Development Related Agreements
(defined in Exhibit "A"), Leases (defined in Exhibit "A") and Service Agreements
(defined in Exhibit "A") pertaining to the Offered Property and other requested
materials (including a true and correct copy of the partnership agreement and
tax returns for the three year period prior to the Offer Notice for Seller and
for Lewis-Alexis), to acquire the Offered Property in accordance with the terms
and conditions of the Offer Notice.
(c) If Buyer delivers an Acceptance Notice within the prescribed
time period, then the Acceptance Notice, together with the Offer Notice, shall
be deemed to be an agreement of sale and purchase, on the terms and conditions
of the Offer Notice.
(d) If Buyer does not deliver an Acceptance or an Exercise Notice
with respect to the Offered Property to Seller within the prescribed thirty (30)
day period, the Seller shall be entitled to Transfer the Offered Property to an
unrelated third party free of any rights of Buyer under this Agreement on terms
no less favorable to Seller than those specified in the Offer Notice, and upon
such Transfer, Buyer's rights under this Agreement with respect to the Offered
Property shall automatically terminate. If the Seller does not enter into a
binding agreement to consummate such Transfer (which agreement will be deemed
binding notwithstanding customary conditions to the obligations of parties
thereunder) within six (6) months after the expiration of the time for Buyer to
give an Acceptance Notice or if the Seller does not complete such Transfer
within three (3) months after the expiration of the time for consummating the
offer set forth in the Offer Notice (or, if no such time is specified in the
Offer Notice then within nine (9) months after the expiration of the time for
Buyer to give an Acceptance Notice), then Buyer's rights hereunder with respect
to such Offered Property shall be deemed reinstated.
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(e) The term "Transfer" as used in this Agreement shall not include
the grant of a mortgage or deed of trust or the creation of any security
interest to secure a bona fide loan, dedication to a governmental body or public
utility or any execution upon any mortgage, deed of trust, pledge agreement or
security interest, nor shall "Transfer" include any transfer by a Seller to a
party other than an unrelated third party, provided, however, that any such
transfer to a party other than an unrelated third party shall be under and
subject to the rights of Buyer hereunder and the transferee shall assume and
promise to observe and perform the covenants and obligations of its transferror
hereunder.
III. Access to Properties and Documents.
Seller shall from time to time, upon the request of Buyer, furnish
to Buyer, at Buyer's expense, copies of all Development Related Agreements,
Leases, Service Agreements (all as defined in Exhibit "A") and such other
documents, instruments and records in Seller's possession as Buyer may
reasonably request, and Seller shall afford Buyer access to the Real Estate (as
defined in Paragraph 9 below) and to Seller's books and records pertaining
thereto, for purposes of inspecting same and causing surveys and audits to be
performed, all at Buyer's expense. Except for permitting access to the foregoing
by its trustees, employees, partners, attorneys, accountants and advisors, Buyer
will use reasonable efforts to preserve the confidentiality of any of the
foregoing which have not been made public by Seller.
IV. Merger into Agreement of Sale.
If Buyer gives an Exercise Notice or an Acceptance Notice then
Buyer's rights under this Agreement with respect to the Partnership Interests
which are the subject of the Agreement of Sale resulting from such Exercise
Notice or Acceptance Notice shall be deemed merged into such Agreement of Sale
and shall be extinguished, but shall retain the priority of this Agreement.
V. Continuing Rights.
The exercise or the non-exercise by Buyer of the Right of First
Offer/Refusal to acquire any Partnership Interests pursuant to the terms of this
Agreement shall not affect Buyer's continuing rights under this Agreement as to
Partnership Interests which were not the subject matter of a prior Offer Notice.
VI. Notices.
(a) Each notice to be given pursuant to this Agreement shall be in
writing and shall be deemed to have been properly given or served by deposit of
such with the United States Postal Service certified mail, return receipt
requested, postage prepaid or with a nationally recognized overnight courier for
next business day delivery and addressed as hereinafter provided.
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(b) Any such notice shall be effective upon the earlier of (i)
actual receipt or refusal to accept delivery by addressee or (ii) two business
days after deposit thereof at any main or branch of the United States Postal
Service or (iii) the first business day after deposit with nationally recognized
overnight courier. Rejection or other refusal to accept or the inability to
deliver because of a changed address or status of which no written notice was
given shall be deemed to be receipt of the particular notice sent. By giving to
the other party entitled to notice hereunder a notice pursuant to the provisions
of this Section, the party entitled to notice shall have the right from time to
time during the term of this Agreement to change the address(es) thereof and to
specify as the address(es) thereof any other address(es) within the United
States of America.
Each notice to Buyer or Sellers shall, in the case of a notice to Buyer,
specify the name of the Independent Trustees of Buyer, or in the case of a
notice to a Seller, specify the applicable Seller, and shall be addressed as
follows:
27600 Northwestern Highway
Suite 200
Southfield, MI 48034-2137
VII. Subordination.
This Agreement is and shall be subject and subordinate at all times
to the lien of any mortgage, deed of trust and/or other encumbrance affecting
the Partnership Interests, or any part thereof permitted under Paragraph 2(e)
(such liens and matters of record are collectively referred to as a "Prior
Interest"), all automatically and without the necessity of any further action on
the part of Buyer to effectuate such subordination. Buyer shall, at Seller's
request, execute, acknowledge and deliver such further instruments evidencing
such subordination as shall be desired by Seller or the holder of a Prior
Interest.
VIII. Term. This Agreement shall expire ten (10) years from the date
hereof.
IX. Consequences of a Sale of Real Estate. Not less than forty-five
(45) days prior to any Transfer by Lewis-Alexis of the real estate owned by it
(the "Real Estate") to a third party unrelated to the Seller (whether or not
such Transfer may be to a party related to one or more other partners in
Lewis-Alexis), the Seller shall give notice to Buyer ("Pending Sale Notice") of
the proposed Transfer and all material terms and conditions of the proposed
Transfer, and, unless Buyer shall issue an Exercise Notice within thirty (30)
days following receipt by Buyer of the Pending Sale Notice, the proceeds of such
Transfer distributable to Seller will be retained by it; provided, however, that
if such Transfer is of less than all or substantially all Real Estate, then the
options and rights of Buyer hereunder shall remain in effect; and provided
further that if Seller shall fail to give a Pending Sale Notice required
hereunder, then Seller shall be obligated to pay to Buyer, contemporaneous with
its receipt of its pro rata share of the net sales proceeds of such sale (as
determined under the terms of the partnership agreement of Lewis-Alexis), the
amount by which the pro rata share of the net sales proceeds exceeds the amount
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which would have been the Purchase Price if the Option had been exercised and
Closing had occurred.
X. Successors and Assigns.
(a) The terms and provisions of this Agreement shall be binding
upon the Seller, and its successors and assigns, and shall inure to the benefit
of Buyer and its successors.
(b) Buyer shall have no right to assign or pledge its rights under
this Agreement, but Buyer may direct that the conveyance of the Property at
Closing be made to an Affiliate of Buyer.
XI. Miscellaneous.
(a) This Agreement and the obligations of the parties shall be
interpreted, construed and enforced in accordance with the internal law of Ohio,
without regard to the conflicts of law principles thereof.
(b) If any provision of this Agreement shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to any other circumstance shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
(c) This Agreement constitutes the entire Agreement of Seller and
Buyer with respect to the subject matter hereof. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought.
(d) All personal pronouns used in this Agreement, with the use in
the masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural; and the plural shall include the singular.
Titles of Paragraphs in this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
(e) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which together shall
comprise but a single instrument.
(f) All exhibits and schedules attached to this Agreement are
incorporated by reference into and made a part of this Agreement.
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XII. Consent of Other Partners of Lewis-Alexis.
Buyer hereby acknowledges that the exercise by Buyer of its rights
hereunder may require approval of one or more partners of Lewis-Alexis other
than Seller. Seller will not seek such approval until receipt of an Exercise
Notice or an Acceptance Notice, but thereafter Seller promises to use
commercially reasonable efforts to obtain such approvals, but Seller shall not
be required to pay money or other consideration to obtain such approvals except
that Seller will pay normal fees and expenses of counsel and such normal
overhead costs as may be necessary. The obligations of Seller and Buyer to
consummate Closing shall be conditioned upon the grant of such approvals of
other partners of Lewis-Alexis as may be necessary under the agreements
governing Lewis-Alexis.
XIII. Security Interest.
Contemporaneous with the execution of this Agreement, Seller is
executing and delivering to Buyer UCC Financing Statements, form 1, to perfect
Buyer's security interest in Seller's obligation to remit to Buyer the proceeds
of sale described in Paragraph 9 of this Agreement above. This Agreement
constitutes a security agreement under the terms of the Uniform Commercial Code
and Seller acknowledges and agrees that Seller is receiving value under the
terms of the Master Agreement. Seller shall execute, deliver, file and refile
any financing statements or continuation statements which Buyer may require from
time to time to confirm the lien of Buyer's security interest and upon default
of Seller to remit to Buyer the proceeds of sale, as required under Paragraph 9
above, Buyer shall have all of the rights and remedies granted to a secured
party under the Uniform Commercial Code. The security interest granted hereby
shall be subordinate to any security interest in any Partnership Interests
granted by a Seller in accordance with Paragraph 2(e) hereof, automatically and
without the need of any further act or writing, and Buyer, notwithstanding that
such subordination is automatic, will execute and deliver upon request forms
UCC-3 or other documents which may be necessary or desirable to evidence or
confirm such subordination.
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IN WITNESS WHEREOF, intending to be legally bound, the parties have
caused this Agreement to be executed on the day and year first above written.
BUYER:
RAMCO GERSHENSON PROPERTIES, L.P., a Delaware limited
partnership, by its general partner
By: Ramco Gershenson Properties Trust, a Maryland
Trust
By: __________________
SELLER:
RAMCO LEWIS-ALEXIS ASSOCIATES,
an Ohio general partnership, by its
general partners
______________________
______________________
______________________
______________________
______________________
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EXHIBIT A
OPTION TERMS AND CONDITIONS
1. Sale and Premises.
Seller shall sell and convey to Buyer and Buyer shall purchase
from Seller, upon the terms and conditions hereinafter set forth all of Seller's
right and interest in Lewis-Alexis, including, without limitation, all right,
title and interest of Seller in (i) all distributions by Lewis-Alexis after the
Closing Date of cash or other assets from operations, capital transactions,
sales, refinancings, liquidation or any other source, which interest in such
distributions shall not be subordinate to any superior right to distributions or
payments of any type to any partners of a Seller or Affiliates of a Seller or
partners of a Seller, including return of capital or (ii) all profits and losses
incurred by Lewis-Alexis after the Closing Date; and, (iii) all capital of Lewis
Alexis. At Closing, Seller shall deliver to Buyer duly executed originals of
such Amendment (the "Partnership Amendments") to the Partnership Agreement of
Lewis-Alexis as are necessary to make the provisions of this Agreement a part
thereof. Buyer will, at Closing, assume the obligation of Seller as a partner in
the PI Property Partnership pursuant to the partnership agreement and
Partnership Amendments affecting such PI Partnership disclosed to Buyer, and
Buyer will agree to defend, indemnify and hold harmless Seller from and against
any and every manner of loss, cost, damage or expense arising by reason of any
failure of Buyer to observe or perform any covenant or obligation assumed by
Buyer at Closing.
2. Purchase Price.
(a) The purchase price (the "Purchase Price") to be paid by
Buyer to Seller for such Seller's Partnership Interest shall be Seller's Share
(hereafter defined) of the Agreed Value. The Agreed Value shall be that amount
equal to ten percent (10%) of the principal amount of the Existing Mortgage as
of December 31, 1994 [$13 million] (a) plus, costs of Tenant improvements,
allowances to Tenants and capital expenditures incurred by Lewis-Alexis after
the date hereof and the amount, if any, by which the principal of the Existing
Mortgage has been reduced below $13 million other than by application of
proceeds of sale of any portion of the Real Estate or by application of
insurance proceeds or condemnation awards not applied to restoration, and (b)
less the amount, if any, by which the principal amount secured by the Existing
Mortgage as of Closing exceeds $13 million and the sum of all amounts
distributed to partners of Lewis-Alexis from and after the date hereof through
and including the Closing Date in excess of Operating Cash Flow (hereafter
defined).
(b) The Purchase Price shall be paid by Buyer to Seller at
Closing by any of the following methods designated by the Seller:
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(i) The delivery to the Seller of a Bank treasurer's check of
a member Bank of The New York Clearing House, payable to the order of the Seller
or, at Seller's option, the Title Insurance Company check or by wire or debit
and credit transfer of immediately available same day United States Federal
Funds to one or more accounts to be designated by Seller, or
(ii) Subject to any securities laws limitations, by the
issuance of limited partnership interests in Buyer (the "Operating Partnership
Interests"), which shall be exchangeable for common shares of beneficial
interest ("Shares") of Ramco-Gershenson Properties Trust, a Maryland business
trust (the "REIT"), subject to the restrictions and on the basis to be
established in the limited partnership agreement of Buyer. The Operating
Partnership Interests will be divided into units ("OP Units") in the manner
determined by the general partner of Buyer.
(c) The number of Operating Partnership Interests to be issued
to Seller shall be that number of Operating Partnership Interests convertible
into Shares having a Share Value as of the day preceding the Closing Date equal
to the Purchase Price. For purposes of this Agreement,
(i) the term "Share Value" as of a particular day shall mean
the average of the closing prices that a Share has traded for the five (5)
trading days immediately preceding that particular day on the New York Stock
Exchange (or, if Shares are not then traded on the New York Stock Exchange, then
on the principal stock exchange on which Shares are then traded).
(ii) the term "Operating Cash Flow" shall mean the net income
of Lewis-Alexis in the relevant period reduced by the entire amount (including
any portion thereof expensed in the relevant period) of expenditures of cash
made in such period which were not deducted from gross income in the computation
of net income (such as, for purposes of illustration, capital expenditures and
payments of principal, but not including distributions of profits or capital to
partners) and increased by the amount of depreciation, amortization and other
non-cash items deducted from gross income in the computation of net income.
(iii) the term "Seller's Share" shall mean the
percentage interest in Lewis-Alexis transferred by the Seller to Buyer at
Closing hereunder.
(d) Seller acknowledges and confirms that (i) neither the
Operating Partnership Interests nor the Shares have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any state
securities laws; and (ii) neither the Operating Partnership Interests nor the
Shares may be sold or otherwise transferred by Seller except in accordance with
law. Seller by execution of this Agreement hereby acknowledges, represents and
warrants that the Operating Partnership Interests being acquired hereunder are
being acquired for Seller's account (or for the account of the partners of
Seller) and not for the account of any other person or persons, for investment
and not with a view to the disposition thereof in violation of the Securities
Act.
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(e) Title to the Real Estate shall be subject to that certain
Mortgage (the "Nationwide Mortgage") in favor of First Nationwide Life Insurance
Company and Financial Horizons Life Insurance Company in the original principal
amount of $13 million dated January 28, 1991 and recorded in the office of the
recorder for Lucas County, Ohio in Mortgage Book 91-0107-A03 (the Nationwide
Mortgage, the indebtedness secured thereby and any Permitted Refinancing
Mortgage (defined below) is herein called the "Existing Mortgage"). The term
"Permitted Refinancing Mortgage" shall mean any mortgage lien (and the debt
secured thereby) securing debt the proceeds of which were used to pay the
principal outstanding under the Nationwide Mortgage or under any prior Permitted
Refinancing Mortgage, provided (i) the principal amount secured thereby shall
not exceed $13 million plus costs of Tenant improvements, allowances to Tenants
and capital expenditures incurred by Lewis-Alexis after the date hereof, (ii)
the indebtedness secured by such mortgage lien will provide for the payment of
all accrued interest not less often than quarterly, (iii) liability for the
repayment of such indebtedness shall be limited to the Real Estate, and (iv)
such mortgage shall not confer on the holder thereof any right to share in the
income from or the value of the Real Estate.
3. Closing.
(a) Closing shall be held on the date designated by Buyer by
at least twenty (20) days prior written notice to Seller ("Closing Date") which
shall be not less than thirty (30) days and not more than ninety (90) days
following the Exercise Notice or the Acceptance Notice, except that in the case
of an Acceptance Notice, if the Offer Notice shall have specified a date for
Closing then the Closing Date shall be the date specified in the Offer Notice.
(b) Closing is the event ("Closing") during which, among other
things, the Buyer shall pay the Purchase Price to the Seller for the Property
and the Seller shall deliver to the PI Assignment and Assumption (defined below)
and such other documents or instruments as may be required pursuant to this
Agreement.
4. Condition of Title.
(a) Title shall be conveyed by an Assignment and Assumption
Agreement signed by Seller and Buyer ("PI Assignment and Assumption") which
shall include customary indemnifications for matters arising before and after
the Closing Date exchanged between Buyer and Seller and attach as an exhibit the
executed Partnership Amendments described in subparagraph 1(b) above under which
Buyer shall be admitted as a partner in Lewis-Alexis.
(b) Title to the Partnership Interests shall be good title by
which the Seller shall Transfer the full and legal beneficial ownership of the
Partnership Interests free and clear of all pledges, liens, claims, restrictions
and encumbrances. Buyer shall obtain at Buyer's expense a Fairways Endorsement
and Non-imputation Endorsement to the existing owner's title policy held by
Lewis-Alexis. Sellers agree to execute such affidavits as the Title Insurance
Company may require to issue those endorsements. Title held by Lewis-Alexis to
the Real Estate
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shall be good and marketable and free and clear of all liens except for
Permitted Encumbrances and except for the Existing Mortgage, which may encumber
the Real Estate.
(c) The term "Permitted Encumbrances" shall mean the
following, but shall not include any matter or thing created, permitted or
suffered by Seller in violation of this Agreement:
(1) All liens for unpaid real estate taxes and water and
sewer charges to be apportioned at Closing, all special assessments below and
all installments of any special assessment, in each case, not yet due and
payable.
(2) All present and future zoning, building,
environmental and other laws, ordinances, codes, restrictions and regulations
of all governmental authorities having jurisdiction with respect to the Real
Estate and any municipal land development agreements or conditions, zoning
variances and special exceptions.
(3) All rights, easements and agreements, whether or not
of record, for the erection and/or maintenance of water, gas, steam, electric,
telephone, sewer or other utility pipelines, poles, wires, conduits or other
like facilities, and appurtenances thereto, over, across and under the Premises
and all other matters of record other than monetary liens (except the Existing
Mortgage and any monetary lien described in subparagraph 4(c)(1) above).
(4) Any state of facts which would be shown on or by an
accurate current survey of the Real Estate and/or a physical inspection thereof.
(5) Rights of tenants as tenants only under the terms and
conditions of all leases in effect at the date of Closing.
(6) Any outstanding violations of building, fire,
sanitary, environmental, housing and similar laws, ordinances, rules,
regulations and orders of governmental authorities having jurisdiction over the
Real Estate.
(7) All other matters of record provided they do not
constitute a "Transfer" under the Option Agreement to which this Exhibit is
attached.
5. Intentionally Omitted.
6. Apportionments.
Distributions to partners of a Lewis-Alexis with respect to the
fiscal year of Lewis-Alexis in which Closing occurs will be pro-rated between
Seller and Buyer on a per diem basis promptly following the close of such fiscal
year and the making of the final distribution with respect to such fiscal year
by Lewis-Alexis. Buyer will be credited with the day of Closing, and will be
entitled to receive from the Lewis-Alexis all distributions made by it on
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and after the day of Closing with respect to the Partnership Interests acquired
by Buyer at Closing. If either party has received distributions with respect to
such fiscal year in excess of such party's share determined on a per diem basis,
such party will pay such excess to the other promptly following the close of
such fiscal year and the determination of such excess.
7. Seller's Obligations With Respect To Closing.
(a) At the Closing, each Seller shall deliver to Buyer an
opinion of counsel reasonably satisfactory to Buyer, opining that:
(i) Each of Lewis-Alexis and the Seller is a partnership
duly organized, validly existing, and in good standing under the laws of its
state of formation, with full power, authority and legal right to carry on the
business in the manner and in the location in which it is then in business and,
as to Lewis-Alexis, to own the Real Estate and, as to the Seller, to own its
partnership interest in Lewis-Alexis;
(ii) The PI Assignment and Assumption has been duly
authorized by and duly executed on behalf of the Seller and is binding upon and
enforceable against the Seller and, subject only to applicable laws regarding
bankruptcy, insolvency and creditors rights;
(iii) To such counsel's knowledge, the Transfer of the
Partnership Interests to Buyer will not result in any breaches of or defaults
under any agreement, document or obligation known to such counsel, to which
Seller is a party or by which Seller, or Lewis-Alexis is subject or bound, or
result in any lien, claim or encumbrance upon or against the Seller or the Real
Estate;
(iv) To such counsel's knowledge, the consent of all
persons, if any, whose consent is required to the Transfer of the Partnership
Interests has been obtained; and
(v) To such counsel's knowledge, there is no action,
suit, investigation or other proceeding pending or threatened which involves any
matter for which the Partnership Interests might be subject or bound.
(b) As to clauses (iii), (iv) and (v) of the opinion letter
described in (a) above, if counsel shall set forth exceptions to the opinion
rendered, Seller will not by reason thereof be in default of its obligation to
deliver such opinion (although this is not intended to excuse any other default
hereunder which such exceptions may represent or reflect), and Buyer will have
the option to accept such opinion and to consummate Closing or to refrain from
doing so, and in the latter event the rights and options granted to Buyer under
the Option Agreement And Right of First Offer/Refusal to which this Exhibit "A"
is attached shall remain in effect as to the Partnership Interests in question
for the remainder of the Option Term.
(c) Seller shall covenant, represent and warrant to Buyer
(with survival after Closing) in the PI Assignment and Assumption that:
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(i) Seller has good title to the Partnership Interests
with full right, power and authority to transfer and assign to Buyer the full
and legal beneficial ownership of the Partnership Interests, free and clear of
all pledges, liens, claims and encumbrances;
(ii) Seller has not pledged, hypothecated, encumbered,
assigned or transferred Seller's Partnership Interests;
(iii) Seller has no claims of any nature against
Lewis-Alexis or the interest of any partner therein;
(iv) Seller has not incurred any debts or obligations on
behalf of the PI Property Partnership which will remain after Closing and the
Real Estate is not encumbered by any debt not disclosed to Buyer; and
(v) All federal and state income tax liability resulting
from Seller's interest in the Partnership Interests has been paid by Seller or
otherwise escrowed from the sales proceeds payable to the Seller.
8. Transfer Taxes.
Buyer shall pay all realty transfer taxes payable regarding
this transaction.
9. Buyer's Default.
If Buyer defaults under this Agreement at or prior to Closing
by failing to complete Closing in accordance with the terms of this Agreement or
in any other respect, then on the date specified for Closing (or sooner in the
event of an anticipatory breach) Buyer's Purchase Option and Right of First
offer with respect to the Partnership Interests shall terminate and the Seller
shall have no further recourse against Buyer, provided, however, that if this
Agreement shall have resulted from the issuance by Seller of an Offer Notice and
the issuance by Buyer of an Acceptance Notice, then in addition to the
termination of Buyer's Purchase Option and Right of First Offer as to the
Partnership Interests, the liability of Buyer for default shall be the
liability, if any, specified in the Offer Notice.
10. Seller Default.
If Seller shall fail or be unable to perform in accordance with
this Agreement, then Buyer, shall have the right as its sole and exclusive
remedies to revoke the Exercise Notice or Acceptance Notice, or to obtain
specific performance of Seller's obligations hereunder and Seller expressly
acknowledges that its Partnership Interests are unique and that specific
performance is an appropriate remedy for Seller's default hereunder.
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11. Fire or Other Casualty.
In the event that the Real Estate shall be damaged or destroyed
by fire, vandalism or other casualty prior to the completion of Closing, Buyer
may choose to complete Closing hereunder or Buyer may withdraw its Acceptance
Notice or Exercise Notice. Following Buyer's Acceptance Notice or Exercise
Notice, Seller will cause Lewis-Alexis to maintain in effect through Closing its
policies of property insurance with respect to the Real Estate.
12. Preparation of Assignment and Assumption.
The PI Assignment and Assumption shall be prepared and, if
necessary, recorded at the expense of Buyer. At least ten (10) days prior to the
Closing Date, Buyer shall submit to Seller the PI Assignment and Assumption.
13. Buyer's Right of Entry; Due Diligence Period.
(a) Buyer and Buyer's agents, consultants and representatives,
shall have the right, from time to time, after giving the Acceptance Notice or
the Exercise Notice, during usual business hours, to enter upon (with the
approval of Lewis-Alexis, which approval the Seller will use commercially
reasonable efforts to obtain, but Seller shall not be required to pay money or
other consideration to obtain such approvals except that Seller will pay normal
fees and expenses of counsel and such normal overhead costs as may be necessary)
the Real Estate for the purpose of inspection, preparation of plans, making of
test borings, taking of measurements, making of surveys and generally for the
reasonable ascertainment of the condition of the Real Estate; provided, however,
that Buyer shall (i) give Seller prior written notice of the time and place of
such entry and permit a representative of Seller to accompany Buyer; (ii)
restore any or replace with appropriate material any soil or other material
removed during, such test borings; (iii) indemnify, defend and save Seller
harmless from and against any and all liabilities which Seller may suffer by
reason of such entry prior to Closing; and (iv) not enter into any space leased
to third parties or communicate with any tenant without Seller's prior written
consent.
(b) With respect to environmental matters, Buyer and Buyer's
agents, consultants and representatives shall have the right, from time to time,
after giving Acceptance Notice or the Exercise Notice, during usual business
hours, to full access or (with the approval of Lewis Alexis, which approval the
Seller will use commercially reasonable efforts to obtain, but Seller shall not
be required to pay money or other consideration to obtain such approvals except
that Seller will pay normal fees and expenses of counsel and such normal
overhead costs as may be necessary) to the Real Estate and the operations
conducted thereon for purposes of independent investigation; provided, however,
that Buyer shall (i) give Seller prior written notice of the time and place of
such entry and permit a representative of Seller to accompany Buyer; and (ii)
restore or replace with appropriate material any soil or other material removed
during any test borings. At Buyer's sole option, such investigation may include,
without limitation, such testing of the soil, groundwater, building components,
tanks, containers and equipment on the Real Estate, as applicable, as Buyer or
Buyer's agents, consultants or representatives shall deem
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necessary or appropriate to confirm the condition of the Real Estate and the
compliance of the operations conducted thereon. Buyer shall indemnify, defend
and save Seller harmless from and against any and all liabilities which Seller
may suffer by reason of the acts, or negligence or violation of law committed by
Buyer or Buyer's agents, consultants or representatives during the course of
such testing.
(c) Prior to permitting any party to enter the Real Estate
prior to Closing for the purpose of performing any services or supplying any
materials for which such party could claim a mechanic's lien against the Real
Estate or any part thereof, Buyer shall cause to be delivered releases of
mechanic's liens in form reasonably satisfactory to Seller.
(d) At any time prior to sixty (60) days following the
Exercise Notice (the "Due Diligence Period"), Buyer may revoke its Exercise
Notice by written notice to Seller, whereupon the Purchase Option and the Right
of First Offer/Refusal will terminate as to the Partnership Interests. If this
Agreement shall have resulted from the issuance by Seller of an Offer Notice and
the issuance by Buyer of an Acceptance Notice, then the due diligence period, if
any, and Buyer's termination right, if any, shall be as set forth in the Offer
Notice. Within fifteen (15) days following the Acceptance Notice or the Exercise
Notice (or such shorter time, if any, as may have been provided for in the Offer
Notice), Seller will furnish to Buyer the Rent Roll and copies of all of the
leases and agreements to lease (the "Leases"), service agreements (the "Service
Agreements") and all plans, specifications, permits and approvals, architects'
contracts, construction contracts (collectively, the "Development Related
Agreements") then in effect with respect to the Real Estate as of the date of
the Acceptance Notice or the Exercise Notice, together with a certificate
representing and warranting that there are no material inaccuracies in the Rent
Roll and that the copies of the Leases, Service Agreements and Development
Related Agreements are true, correct and complete.
14. Condemnation.
If any part or parts of the Real Estate shall be taken by the
exercise of the power of eminent domain, this Agreement shall continue in full
force and effect and there shall be no adjustment of the Purchase Price (except
if and to the extent such taking results in an adjustment pursuant to Paragraph
2 by reason of distribution of money to Seller in excess of Operating Cash
Flow). With respect to any such taking after the date of this Agreement, Seller
shall furnish to Buyer a copy of the declaration of taking promptly after
Seller's receipt thereof.
15. Brokers.
Buyer and Seller each represent and warrant to the other that
it has dealt with no broker or other intermediary in connection with this
transaction or the Premises. The party in breach of the foregoing representation
and warranty shall indemnify, defend and save the other harmless from and
against any claim for commission or compensation by such broker or other
intermediary, as well as all costs and liabilities incurred by the other by
reason thereof.
15
<PAGE> 367
16. Condition of Property.
The entire agreement between the Seller and Buyer with respect
to the Partnership Interests and the sale thereof is expressly set forth in this
Agreement, and the parties are not bound by any agreement, understandings,
provisions, conditions, representations or warranties other than as are
expressly set forth in this Agreement. Without in any manner limiting the
generality of the foregoing, Buyer acknowledges that at the expiration of the
Due Diligence Period, it and its representatives will have fully inspected the
Real Estate and the Service Agreements and the Leases, will then be fully
familiar with the physical and financial condition thereof, and that the
Partnership Interests shall have been purchased by Buyer in an "as is" and
"where is" condition as a result of such inspection and investigations and not
in reliance on any agreement, understanding, condition, warranty or
representation made by Seller or any agent or employee of Seller (except as
expressly elsewhere provided in this Agreement) as to the condition thereof, as
to any permitted use thereof, or as to the income or expense in connection
therewith, or as to any other matter in connection therewith; and Buyer further
acknowledges that no Seller nor any party acting on behalf of a Seller has made
or shall be deemed to have made any such agreement, condition, representation or
warranty, except as expressly set forth in this Agreement.
(b) Between the date of the Exercise Notice or the Acceptance
Notice and the Closing, Seller shall cause Lewis-Alexis to make all repairs to
the Real Estate) required to maintain them in the same condition as they are as
of the date of the Acceptance Notice or the Exercise Notice, as said condition
shall be changed by wear and tear, eminent domain, damage by fire or other
casualty, or vandalism.
17. FIRPTA.
To inform Buyer that withholding of tax is not required upon
the disposition by Seller of a United States real property interest or
partnership interest, the Seller at Closing shall certify:
(i) Seller is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and Income Tax Regulations);
(ii) Seller's U.S. employer identification number/social
security number is____________________; and
(iii) Seller's office address is:
____________________________________________
____________________________________________
____________________________________________.
Seller, understands that this certification may be disclosed to the Internal
Revenue Service by Buyer and that any false statement made here could be
punished by fine, imprisonment or both.
16
<PAGE> 368
18. General Representations and Warranties.
To induce Buyer to enter into this Agreement, Seller hereby
represents and warrants as follows:
(a) Organization
Seller is a partnership duly organized, validly existing and in
good standing under the laws of the State of its formation with full power,
authority and legal right to own its property and assets and to carry on the
business in the manner and in the locations in which it has been and is now
being conducted by it, and to engage in the transactions contemplated by this
Agreement. The Partnership Agreement of Seller and of Lewis-Alexis (copies of
which have been certified and delivered to Buyer on the date hereof) are each
true, complete and accurate, in full force and effect, represent the entire
agreement of the parties thereto and have not been modified or amended except as
specified.
(b) Authority; Binding Obligation
Seller has taken all action which may be required by its
partnership agreement, the laws of the State of its formation, and all other
applicable laws to authorize the execution, delivery and performance of this
Agreement, except that the partnership agreement of Lewis-Alexis may require the
approval of other partners for the sale or transfer of partnership interests by
Sellers, which approvals may not yet have been obtained, in which case the
Seller, promptly following the receipt of an Exercise Notice, will use
commercially reasonable efforts to obtain such approvals but Seller shall not be
required to pay money or other consideration to obtain such approvals except
that such Seller will pay normal fees and expenses of counsel and such normal
overhead costs as may be necessary. This Agreement constitutes the valid and
binding obligation of Seller enforceable in accordance with its terms.
(c) Payment of Taxes
Seller and Lewis-Alexis, have filed all federal and state tax
returns required to be filed, and all taxes shown to be owing on such returns
have been paid. Seller has no knowledge of any deficiency or assessment which
may become due in connection with such taxes. All other taxes, governmental
levies or assessments affecting the Partnership Interests or any portion thereof
to the extent due and payable have been paid.
17
<PAGE> 369
Schedule 1
Name of Seller Partnership Interest
RAMCO LEWIS-ALEXIS ASSOCIATES [ %]
Property
North Towne Commons Shopping Center
Toledo, Ohio
18
<PAGE> 370
EXHIBIT O
RAMCO STOCK CONTRIBUTION AGREEMENT
DATED AS OF APRIL __, 1995
AMONG
DENNIS GERSHENSON,
JOEL GERSHENSON,
BRUCE GERSHENSON,
RICHARD GERSHENSON,
MICHAEL A. WARD,
MICHAEL A. WARD U/T/A,
DATED 2/22/77, AS AMENDED,
AND
RAMCO-GERSHENSON PROPERTIES, L.P.
<PAGE> 371
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
1. The Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. The Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Time and Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Deliveries by the Ramco Principals . . . . . . . . . . . . . . . . . . . . . 2
3. Conditions to Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.1 Conditions to Obligations of All Parties . . . . . . . . . . . . . . . . . . 2
3.2 Conditions to Obligations of the Ramco Principals . . . . . . . . . . . . . 3
3.3 Conditions to the Operating Partnership's Obligations . . . . . . . . . . . 4
4. Representations and Warranties of the Ramco Principals . . . . . . . . . . . . . . . 5
4.1 Organization of Ramco . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.2 Ownership of Ramco Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.3 No Conflict as to the Ramco Principals . . . . . . . . . . . . . . . . . . . 5
4.4 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.5 No Conflict as to Ramco . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.6 Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.7 Material Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.8 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.9 No Shareholders Agreements . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.10 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. Representations and Warranties of the Operating Partnership . . . . . . . . . . . . 7
5.1 Organization of the Operating Partnership . . . . . . . . . . . . . . . . . 7
5.2 Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6. Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.1 Notification of Certain Matters . . . . . . . . . . . . . . . . . . . . . . 7
6.2 Operation in Ordinary Course . . . . . . . . . . . . . . . . . . . . . . . . 8
6.3 Conduct of Business by Ramco and the Operating Partnership Prior
to the Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.4 Adoption of Amended and Restated Articles of Incorporation and
Amended and Restated By-Laws; Recapitalization . . . . . . . . . . . . . . . 9
6.5 Management Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
</TABLE>
ii
<PAGE> 372
<TABLE>
<CAPTION>
Page
<S> <C> <C>
7. Survival of Representations and Warranties; Indemnification . . . . . . . . . . . . 9
7.1 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.2 Time Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.3 Indemnification and Remedies . . . . . . . . . . . . . . . . . . . . . . . . 10
8. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10. Jurisdiction; Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10.1 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10.2 Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
11. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
11.1 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
11.2 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
11.3 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11.4 Exclusive Agreement; Amendment . . . . . . . . . . . . . . . . . . . . . . . 14
11.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
iii
<PAGE> 373
RAMCO STOCK CONTRIBUTION AGREEMENT
RAMCO STOCK CONTRIBUTION AGREEMENT, dated as of April __, 1995, among
Dennis Gershenson, Joel Gershenson, Bruce Gershenson, Richard Gershenson,
Michael A. Ward, Michael A. Ward U/T/A, dated 2/22/77, as amended (collectively,
the "RAMCO PRINCIPALS"), being all of the stockholders of Ramco-Gershenson,
Inc., a Michigan corporation ("RAMCO"), and Ramco-Gershenson Properties, L.P., a
Delaware limited partnership (the "OPERATING PARTNERSHIP").
Reference is made to the Master Agreement dated the date hereof (the
"MASTER AGREEMENT") among RPS Realty Trust, a Massachusetts business trust (the
"TRUST"), Ramco, the Ramco Principals, the Operating Partnership and the Ramco
affiliates listed on Schedule A thereto. Capitalized terms not otherwise defined
herein shall have the meanings set forth in the Master Agreement.
This Agreement is entered into pursuant to and in accordance with the
Master Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, conditions and promises hereinafter set forth, the parties agree as
follows:
1. THE TRANSACTION.
1.1 Contribution by Ramco Principals. Pursuant to Section 1.1 of the
Master Agreement, and subject to the terms and conditions hereof and in reliance
upon the representations, warranties and agreements contained herein, at the
Closing, the Ramco Principals shall contribute to the Operating Partnership
1,000 shares of non-voting common stock, $.01 par value, and 50 shares of voting
common stock, $.01 par value (collectively, the "RAMCO STOCK") of Ramco, free
and clear of any security interest, mortgage, lien, charge, adverse claim or
restriction of any kind, including, but not limited to, any restriction on the
use, voting, transfer, receipt of income or other exercise of any attributes of
ownership (collectively, "ENCUMBRANCES").
1.2 Ramco Closing Date Balance Sheet. Not more than 45 days after
the Closing, Ramco shall prepare and deliver to the Trust a balance sheet
(certified by Ramco's chief financial officer and prepared in accordance with
generally accepted United States accounting principles) as of the close of
business on the Closing Date (the "RAMCO CLOSING DATE BALANCE SHEET"). To the
extent that the Ramco Closing Date Balance Sheet reflects an excess of
liabilities over assets applicable to operations prior to the Closing Date
(other than attributable to properties and long-term debt), as soon as
practicable after the preparation of the Ramco Closing Date Balance Sheet, the
Ramco Principals shall contribute to Ramco an amount of cash equal to such
shortfall. To the extent the Ramco Closing Date Balance Sheet reflects an excess
of assets over liabilities applicable to operations prior to the closing (other
<PAGE> 374
than attributable to properties and long-term debt), Ramco shall, as soon as
practicable after the preparation of the Ramco Closing Date Balance Sheet,
distribute such excess to the Ramco Principals.
2. THE CLOSING; DELIVERIES.
2.1 Time and Place. The closing of the transactions contemplated
hereby (the "CLOSING") shall take place simultaneous with the Closing of the
Business Combination Transaction.
2.2 Deliveries by the Ramco Principals. At the Closing the Ramco
Principals shall deliver to the Operating Partnership stock certificates
representing the Ramco Stock, together with stock powers executed in blank.
3. CONDITIONS TO CLOSING.
3.1 Conditions to Obligations of All Parties. The obligations of
the parties to this Agreement to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by any party:
(a) Consummation of the Business Combination Transaction. The
conditions precedent under the Master Agreement dated the date hereof shall have
been satisfied or waived and, simultaneous with the Closing, the transactions
contemplated by such agreement shall have been consummated.
(b) No Injunction. No permanent or preliminary injunction or
restraining order or other order by any court or other Governmental Body of
competent jurisdiction or other legal restraint or prohibition preventing
consummation of the transactions contemplated hereby shall be in effect.
(c) Approvals and Consents. All material licenses,
authorizations, consents, orders and regulatory approvals of Governmental Bodies
and any other Persons necessary for the consummation of the transactions
contemplated hereby shall have been obtained and shall be in full force and
effect.
(d) Execution of Reimbursement Agreement. Ramco and the
Operating Partnership shall have entered into a reimbursement agreement (the
"REIMBURSEMENT AGREEMENT"), effective as of the Closing Date, in form and
substance reasonably satisfactory to the parties, with respect to the actual
costs (including, without limitation, overhead) that are attributable to the
management of the Ramco Properties referred to in clause (f) below. The
Reimbursement Agreement shall be in full force and effect and no cause for
termination shall exist.
2
<PAGE> 375
(e) Adoption of Articles of Incorporation and By-Laws. The
Amended and Restated Articles of Incorporation and the Amended and Restated
By-Laws of Ramco, substantially in the forms of Exhibit A and B, respectively,
shall have been adopted by the stockholders of Ramco.
(f) Cancellation of Management Contracts. Ramco shall have
cancelled, effective as of the Closing Date, all of the property management
contracts relating to the Ramco Properties which, as of the Closing Date, have
been acquired by the Operating Partnership in fee, and such agreements shall be
of no further force and effect.
(g) Execution of Management Contracts. Ramco shall have
entered into property management contracts, effective as of the Closing Date,
relating to each property managed by Ramco as of the date hereof, including the
28th Street Kentwood Associates property and the S-12 Associates property but
excluding the properties referred to in clause (f) above, in conformity with the
terms upon which Ramco is managing each such property as of the date hereof,
such agreements shall be in full force and effect and no cause for termination
of such agreements shall exist.
3.2 Conditions to Obligations of the Ramco Principals. The
obligations of the Ramco Principals to effect the Closing shall be subject to
the satisfaction at or prior to the Closing of the following conditions, any one
or more of which may be waived by the Ramco Principals:
(a) Representations, Warranties and Agreements. (i) The
representations and warranties of the Operating Partnership set forth in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and as of the Closing Date as though made at such time, except
for such changes permitted or contemplated by the terms of this Agreement and
except insofar as any such representations and warranties relate solely to a
particular date or period, in which case they shall be true and correct in all
material respects on the Closing Date with respect to such date and period, (ii)
the Operating Partnership shall have performed and complied in all material
respects with the agreements contained in this Agreement required to be
performed and complied with by it prior to or at the Closing and (iii) the Ramco
Principals shall have received a certificate, dated the Closing Date, to that
effect signed by an officer of the general partner of the Operating Partnership.
(b) Performance of Agreements. The Operating Partnership
shall have performed in all material respects all obligations and agreements and
complied or caused to be complied with all covenants and conditions required by
this Agreement to be performed or complied with by the Operating Partnership at
or prior to the Closing Date.
<PAGE> 376
(c) Additional Documents. The Operating Partnership shall
have delivered or caused to be delivered to the Ramco Principals all other
documents required to be delivered pursuant to this Agreement.
(d) No Material Adverse Change. Since the date hereof nothing
shall have occurred which, individually or in the aggregate, has had, or is
reasonably likely to have, a Material Adverse Effect on the Operating
Partnership.
3.3 Conditions to the Operating Partnership's Obligations. The
obligations of the Operating Partnership to effect the Closing shall be subject
to the satisfaction at or prior to the Closing of the following conditions, any
one or more of which may be waived by the Operating Partnership:
(a) Representations, Warranties and Agreements. (i) The
representations and warranties of the Ramco Principals set forth in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and as of the Closing Date as though made at such time, except
for such changes permitted or contemplated by the terms of this Agreement and
except insofar as any such representations and warranties relate solely to a
particular date or period, in which case they shall be true and correct in all
material respects on the Closing Date with respect to such date and period, (ii)
the Ramco Principals shall have performed and complied in all material respects
with the agreements contained in this Agreement required to be performed and
complied with by them prior to or at the Closing and (iii) the Operating
Partnership shall have received certificates, dated the Closing Date, to that
effect signed by each of the Ramco Principals.
(b) Performance of Agreements. The Ramco Principals shall
have performed in all material respects all obligations and agreements and
complied or caused to be complied with all covenants and conditions required by
this Agreement to be performed or complied with by the Ramco Principals at or
prior to the Closing Date.
(c) Additional Documents. The Ramco Principals shall have
delivered or caused to be delivered to the Operating Partnership all other
documents required to be delivered pursuant to this Agreement.
(d) No Material Adverse Change. Since the date hereof nothing
shall have occurred which, individually or in the aggregate, has had, or is
reasonably likely to have, a Material Adverse Effect on Ramco or the ability of
any Ramco Principal to fulfill his obligations hereunder.
4
<PAGE> 377
4. REPRESENTATIONS AND WARRANTIES OF THE RAMCO PRINCIPALS.
The Ramco Principals, jointly and severally, represent and warrant
to, and agree with, the Operating Partnership as follows:
4.1 Organization of Ramco. Ramco is a corporation duly organized,
validly existing and in good standing under the laws of the State of Michigan,
with full corporate power and authority to own its properties and to engage in
its business as presently conducted or contemplated, is, or will be prior to
Closing, duly qualified and in good standing as a foreign corporation under the
laws of each other jurisdiction in which it is authorized to do business as set
forth on Schedule 4.1 and is not required to qualify as a foreign corporation in
any other jurisdiction. All of the outstanding capital stock of Ramco is owned
of record and beneficially by the Ramco Principals free and clear of
Encumbrances. No legend or other reference to any purported Encumbrance appears
upon any certificate representing capital stock of Ramco. All of the outstanding
capital stock of Ramco has been duly authorized and validly issued and is fully
paid and nonassessable. There are no outstanding options, rights, conversion
rights, agreements or commitments of any kind relating to the issuance, sale or
transfer of any capital stock of Ramco. None of the outstanding capital stock of
Ramco was issued in violation of the Securities Act or the securities or blue
sky laws of any state or other jurisdiction. Ramco does not own, or have any
option, right, agreement or commitment of any kind to acquire any capital stock
or other securities of any Person or any direct or indirect equity or ownership
interest in any other business. Ramco is not an "investment company" within the
meaning of the Investment Company Act of 1940. The Ramco Principals have
delivered to the Operating Partnership a copy of the Certificate of
Incorporation and By-Laws of Ramco, as currently in effect.
4.2 Ownership of Ramco Stock. Prior to Closing the authorized
capital stock of Ramco will consist of 2,000 shares of non-voting common stock,
$.01 par value, of which 1,000 shares will be outstanding, and 2,000 shares of
voting common stock, $.01 par value, of which 1,000 shares will be outstanding.
All of the outstanding shares of non-voting common stock and 5% of the
outstanding shares of voting common stock constitute the Ramco Stock. The Ramco
Principals own the Ramco Stock, of record and beneficially, free and clear of
all Encumbrances. At least 10 days prior to Closing, Ramco shall deliver to the
Trust Schedule 4.2, which Schedule shall set forth the number and class of
shares held by each Ramco Principal. No legend or other reference to any
purported Encumbrance appears upon any certificate representing the Ramco Stock.
The delivery of certificates to the Operating Partnership provided in Section
2.2 will result in the Operating Partnership's immediate acquisition of record
and beneficial ownership of the Ramco Stock, free and clear of all Encumbrances.
4.3 No Conflict as to the Ramco Principals. Neither the execution
and delivery of this Agreement nor the consummation of any or all of the
transactions
5
<PAGE> 378
contemplated hereby will (a) violate, be in conflict with, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under any material contract to which any Ramco Principal
is party or (b) violate any statute or law or any judgment, decree, order,
regulation or rule of any court or other Governmental Body applicable to any
Ramco Principal.
4.4 Authorization. Each Ramco Principal has all requisite power and
authority to execute, deliver and perform his obligations under this Agreement
and each agreement, document or instrument required to be delivered by him
hereby or in connection herewith, and this Agreement constitutes a valid and
binding obligation of each Ramco Principal, enforceable against each such person
in accordance with its terms.
4.5 No Conflict as to Ramco. Neither the execution and delivery of
this Agreement nor the consummation of any or all of the transactions
contemplated hereby will (a) violate any provision of the Certificate of
Incorporation or By-Laws of Ramco or (b) violate, or be in conflict with, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or excuse performance by any Person of
any of its obligations under, or cause the acceleration of the maturity of any
debt or obligation pursuant to, or result in the creation or imposition of any
Encumbrance upon any property or assets of Ramco under, any agreement or
commitment to which Ramco is a party or by which any of its property or assets
is bound, or to which any of the property or assets of Ramco is subject, or (c)
violate any statute or law or any judgment, decree, order, regulation or rule of
any court or other Governmental Body applicable to Ramco.
4.6 Consents and Approvals. No consent, approval or authorization
of, or declaration, filing or registration with, any Governmental Body or any
other Person is required in connection with the execution, delivery and
performance of this Agreement.
4.7 Material Contracts. Schedule 4.7 sets forth all of the material
contracts to which Ramco is a party. Each such contract is in full force and
effect and is a valid and binding obligation of Ramco. There does not exist
under any such contract any event of default or event which, after notice or
lapse of time or both, would constitute a default thereunder on the part of
Ramco.
4.8 Books and Records. The minute books, stock record books and
other records of Ramco, all of which have been or will be made available to the
Operating Partnership, are complete and correct and have been maintained in
accordance with sound business practices.
4.9 No Shareholders Agreements. No Ramco Principal is party to any
agreement or arrangement among shareholders which affects or relates to the
Ramco Stock.
6
<PAGE> 379
4.10 Insurance. Ramco is not currently receiving, and did not at any
time in 1994 receive, any income that relates to Ramco's agreement or obligation
to insure or act as a primary or co-insurer of the property of any other Person.
5. REPRESENTATIONS AND WARRANTIES OF THE OPERATING PARTNERSHIP.
The Operating Partnership represents and warrants to, and agrees
with, the Ramco Principals as follows:
5.1 Organization of the Operating Partnership. The Operating
Partnership is a limited partnership, duly organized, validly existing and in
good standing under the laws of the State of Delaware. The Operating Partnership
has full partnership power and authority to own its properties and to engage in
its business as presently conducted or contemplated and to execute this
Agreement and any other agreements contemplated hereby, and to perform its
obligations hereunder and thereunder. The Operating Partnership is, or will be
prior to the Closing, duly qualified and in good standing as a foreign limited
partnership under the laws of each jurisdiction in which the property to be
owned, leased or operated by it or the nature of the business to be conducted by
it makes such qualification necessary, except in such jurisdictions where the
failure to be so duly qualified or in good standing would not, individually or
in the aggregate, have a Material Adverse Effect on the Operating Partnership.
The execution, delivery and performance of this Agreement has been duly
authorized by all necessary partnership action (including, but not limited to,
approval by the Board of Trustees of the Trust, in its capacity as general
partner of the Operating Partnership) of the Operating Partnership and this
Agreement constitutes a valid and binding obligation of the Operating
Partnership, enforceable against it in accordance with its terms.
5.2 Consents and Approvals. Except for the filing with, and
clearance by, the Commission of the Proxy Statement, no consent, approval or
authorization of, or declaration, filing or registration with, any Governmental
Body or any other Person is required in connection with the execution, delivery
and performance of this Agreement or the consummation of the transactions
contemplated hereby.
6. COVENANTS.
6.1 Notification of Certain Matters. (a) Between the date of this
Agreement and the Closing Date, the Operating Partnership will give prompt
notice to the Ramco Principals, and the Ramco Principals will give prompt notice
to the Operating Partnership, of: (i) the occurrence, or failure to occur, of
any event that would be likely to cause any representation or warranty contained
in this Agreement to be untrue or inaccurate in any material respect at any time
from the date of this Agreement to the Closing Date (except for changes
permitted or contemplated by this Agreement), (ii) any failure of the Ramco
Principals or the Operating Partnership, as the case may be, to comply with or
satisfy, in any
7
<PAGE> 380
material respect, any covenant, condition or agreement to be complied with by it
under this Agreement, (iii) any notice or other communication from any third
party alleging that the consent of such third party is or may be required in
connection with this Agreement and the transactions contemplated hereby or that
such transactions otherwise may violate the rights of or confer remedies upon
such third party and (iv) any notice of, or other communication relating to, any
litigation or any order or judgment entered or rendered therein.
6.2 Operation in Ordinary Course. Between the date of this
Agreement and the Closing Date, Ramco and the Operating Partnership shall
conduct its business only in the ordinary course and consistent with past
practice.
6.3 Conduct of Business by Ramco and the Operating Partnership
Prior to the Closing. Between the date of this Agreement and the Closing Date,
each of Ramco and the Operating Partnership shall not, without the consent of
the other party (which consent shall not be unreasonably withheld) except as
specifically contemplated by this Agreement or as set forth on Schedule 6.3:
(a) make any changes or amendment of its limited partnership
agreement, certificate of incorporation or by-laws (or other governing
instrument), except, in the case of Ramco, the amendments to the Articles of
Incorporation and Bylaws contemplated in Section 3.1(e) of this Agreement;
(b) issue, sell or otherwise dispose of any of its Equity
Securities, or create, sell or otherwise dispose of any options, rights,
conversion rights or other agreements or commitments of any kind relating to the
issuance, sale or disposition of any of its Equity Securities;
(c) declare or pay any dividends in cash, securities or other
property, make any other distribution with respect to its Equity Securities or
acquire, directly or indirectly, by redemption or otherwise, any of its Equity
Securities;
(d) reclassify, split up or otherwise change any of its
Equity Securities, except, in the case of Ramco, the recapitalization
contemplated by Section 6.4(b);
(e) be party to any merger, consolidation or other business
combination;
(f) organize any new Subsidiary or acquire any Equity
Securities of any Person or any equity or ownership interest in any business;
(g) borrow any funds or otherwise become subject to, whether
directly or by way of guarantee or otherwise, any indebtedness for borrowing
money;
8
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(h) prepay any obligation having a maturity of more than 90
days from the date it was issued and incurred;
(i) enter into any agreement or commitment that restricts it
from carrying on any business anywhere in the world;
(j) waive any claims or rights of substantial value; or
(k) agree or otherwise commit, whether in writing or
otherwise, to do any of the foregoing.
6.4 Adoption of Amended and Restated Articles of Incorporation and
Amended and Restated By-Laws; Recapitalization.
(a) Between the date of this Agreement and the Closing Date,
Ramco shall take any and all corporate action necessary to adopt the Amended and
Restated Articles of Incorporation and the Amended and Restated By-Laws.
(b) Between the date of this Agreement and the Closing Date,
Ramco shall take any and all action necessary to recapitalize its capital stock
so as to create a class of voting common stock and a class of non-voting common
stock and shall issue to the Ramco Principals the number of shares of voting
common stock and non-voting common stock set forth next to each such Ramco
Principal's name on Schedule 4.2.
6.5 Management Contracts. Within 30 days of the date hereof, Ramco
shall prepare and deliver to the Trust the form of management contract to be
entered into pursuant to Section 3.1(g) hereof. Ramco shall consider in good
faith any comments the Trust may have with respect to such form contract.
7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
7.1 Survival. All representations, warranties and agreements
contained in this Agreement or in any certificate delivered pursuant to this
Agreement shall survive the Closing.
7.2 Time Limitations. If the Closing occurs, the Ramco Principals
shall have no liability (for indemnification or otherwise) with respect to any
representation or warranty or any agreement to be performed and complied with
prior to the Closing Date, unless on or before April 30, 1997 Ramco is given
notice asserting a claim with respect thereto and specifying the factual basis
of that claim in reasonable detail to the extent then known by the Operating
Partnership. If the Closing occurs, the Operating Partnership shall have no
liability (for indemnification or otherwise) with respect to any representation,
9
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warranty or agreement to be performed and complied with prior to the Closing
Date, unless on or before April 30, 1997 (the "SURVIVAL PERIOD") the Trust is
given notice of a claim with respect thereto and specifying the factual basis of
that claim in reasonable detail to the extent then known by the Ramco
Principals.
7.3 Indemnification and Remedies.
(a) After Closing, as Recipient's sole remedy as a result of
or arising out of any inaccuracy in or breach of any representation, warranty or
covenant of the Ramco Principals in this Agreement (the "INDEMNIFIED MATTERS"),
the Ramco Principals agree to indemnify and hold harmless the Operating
Partnership, the Trust, each subsidiary of the Operating Partnership or the
Trust, and any of their officers, directors, trustees, employees, agents or
other affiliates (each, an "INDEMNIFIED PARTY" and collectively, the
"INDEMNIFIED PARTIES") from and against all demands, claims, actions or causes
of action, assessments, losses, fines, penalties, damages, liabilities, costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses of counsel chosen by the Indemnified Parties and costs of litigation
and reasonable fees and expenses of accountants chosen by the Indemnified
Parties) and charges sustained or incurred by any of the Indemnified Parties;
provided that, no claim for indemnity may be maintained hereunder unless an
Indemnified Party shall have delivered a written notice identifying such claims
to the Ramco Principals within the Survival Period.
(b) Recourse for the indemnity obligation of the Ramco
Principals set forth in subparagraph (a) above shall be limited to the Pledged
Collateral (as defined in the Pledge Agreement to be entered into by the
Operating Partnership and the Ramco Principals).
(c) If a claim for indemnification is or may be asserted
under this Section 7.3, the person or entity against whom or which such claim is
or may be asserted shall have the right, at its own expense, to participate in
the defense of any claim, action or proceeding asserted which resulted in the
claim for indemnification, and if such right is exercised, the parties shall
cooperate in the defense of such action or proceeding. If a claim is asserted
which is subject to possible indemnification under this Section 7.3, the person
against whom such claim is asserted shall give prompt notice thereof to the
Ramco Principals; provided, however, that the failure to so provide prompt
notice shall not relieve the Ramco Principals from the indemnification
obligations hereunder, unless and to the extent such failure prejudices the
Ramco Principals' defense with regard to such claim.
(d) Indemnification of the Indemnified Parties pursuant to
this Section 7.3 shall be the exclusive remedy of the Indemnified Parties for
any breach of any representation, obligation, warranty or covenant of the Ramco
Principals under this Agreement and the liability of such parties shall be
limited as provided in this Section 7.3.
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(e) Notwithstanding anything to the contrary contained in
this Section 7.3, the Ramco Principals shall not be liable with respect to any
settlement which is made of any claim or any amounts payable under any such
settlement without the prior written consent of the Ramco Principals.
8. TERMINATION.
8.1 Termination. This Agreement may be terminated before the
Closing occurs only as follows:
(a) By written agreement of the Ramco Principals and the
Operating Partnership at any time.
(b) By the Operating Partnership:
(i) if any representation or warranty of the Ramco
Principals made herein is untrue in any material respect (other
than a change permitted or contemplated by this Agreement) and
such breach is not cured within ten days of the Ramco
Principals' receipt of a notice from the Operating Partnership
that such breach exists or has occurred; or
(ii) if the conditions to the Operating Partnership's
obligations to consummate the Closing as set forth in Sections
3.1 and 3.3 cannot reasonably be satisfied on or before the
Termination Date.
(c) by the Ramco Principals:
(i) if any representation or warranty of the Operating
Partnership made herein is untrue in any material respect
(other than due to a change permitted or contemplated by the
terms of this Agreement) and such breach is not cured within
ten days of the Operating Partnership's receipt of a notice
from Ramco that such breach exists or has occurred; or
(ii) if the conditions to the Ramco Principals'
obligations to consummate the Closing as set forth in Sections
3.2 and 3.3 cannot reasonably be satisfied on or before the
Termination Date.
(d) Unless the Closing shall have theretofore taken place, by
either the Operating Partnership or the Ramco Principals after the Termination
Date, provided that the terminating party is not otherwise in default or breach
of this Agreement.
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8.2 Effect of Termination. In the event that this Agreement is
terminated pursuant to Section 8.1, this Agreement shall terminate without any
liability or further obligation of any party to another. However, a termination
under Section 8.1 shall not relieve a defaulting or breaching party from any
liability to the other party or parties hereto for or in respect of such default
or breach.
9. NOTICES.
All notices, consents and other communications under this agreement
shall be in writing and shall be deemed to have been duly given when (a)
delivered by hand, (b) sent by telecopier (with receipt confirmed), provided
that a copy is mailed by registered mail, return receipt requested, or (c) when
received by the addressee, if sent by Express Mail, Federal Express or other
express delivery service (receipt requested), in each case to the appropriate
addresses, and telecopier numbers set forth below (or to such other addresses,
and telecopier numbers as a party may designate as to itself by notice to the
other parties):
To the Ramco Principals:
Ramco-Gershenson, Inc.
27600 Northwestern Hwy
Suite 200
Southfield, Michigan 48034
Telecopier No.: (810) 350-9925
Attention: Mr. Dennis Gershenson
with a copy to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226-3583
Telecopier No.: (313) 962-0176
Attention: Richard Burstein, Esq.
To the Operating Partnership:
Ramco REIT, Inc.
27600 Northwestern Hwy
Suite 200
Southfield, Michigan 48034
Telecopier No.: (810) 350-9925
Attention: Dennis Gershenson
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<PAGE> 385
with a copy to:
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Telecopier No.: (212) 836-8689
Attention: Peter M. Fass, Esq.
and
RPS Realty Trust
747 Third Avenue
New York, New York 10017
Telecopier No.: (212) 355-2552
Attention: Mr. Joel M. Pashcow
10. JURISDICTION; SERVICE OF PROCESS.
10.1 Jurisdiction. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this agreement may be
brought against any of the parties in the courts of the State of Michigan, or,
if it has or can acquire jurisdiction, in the Eastern District of Michigan, and
each of the parties hereby consents to the jurisdiction of such courts (and of
the appropriate appellate courts) in any such action or proceeding and waives
any objection to venue laid therein.
10.2 Service of Process. Process in any action or proceeding
referred to in Section 10.1 may be served on any party anywhere in the world,
whether within or without the State of Michigan and may also be served upon any
party in the manner provided for giving of notices to it in Section 9.
11. MISCELLANEOUS.
11.1 Specific Performance. The parties acknowledge that the subject
matter of this Agreement is unique and that no adequate remedy of law would be
available for breach of this Agreement. Accordingly, each party agrees that the
other parties will be entitled to an appropriate decree of specific performance
or other equitable remedies to enforce this Agreement (without any bond or other
security being required) and each party waives the defense in any action or
proceeding brought to enforce this Agreement that there exists an adequate
remedy at law.
11.2 Captions. The captions in this Agreement are for convenience of
reference only and shall not be given any effect in the interpretation of this
Agreement.
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11.3 No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any waiver must be
in writing.
11.4 Exclusive Agreement; Amendment. This Agreement supersedes all
prior agreements among the parties with respect to its subject matter, is
intended (with the documents referred to herein) as a complete and exclusive
statement of the terms of the agreement among the parties with respect thereto
and cannot be changed or terminated except by a written instrument executed by
the party or parties against whom enforcement thereof is sought.
11.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument.
11.6 Governing Law. This Agreement and (unless otherwise provided)
all amendments hereof and waivers and consents hereunder shall be governed by
the internal law of the State of New York, without regard to the conflicts of
law principles thereof.
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<PAGE> 387
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
Agreement as of the first date written above.
__________________________
Dennis Gershenson
__________________________
Richard Gershenson
__________________________
Bruce Gershenson
__________________________
Joel Gershenson
__________________________
Michael A. Ward
MICHAEL A. WARD, U/T/A,
DATED 2/22/77, AS AMENDED
By:_______________________
Trustee
RAMCO-GERSHENSON PROPERTIES, L.P.
By: RAMCO REIT, INC., its
General Partner
By:_______________________
Name:
Title:
S-1
<PAGE> 388
Exhibit A to Ramco
Stock Contribution
Agreement
RAMCO-GERSHENSON, INC.
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
Dated: , 1995
--------- ---
<PAGE> 389
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I
THE COMPANY; DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Principal Office and Resident Agent . . . . . . . . . . . . . . . . . 1
Section 1.3 Purpose and Powers . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.4 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.1 Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.2 Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.3 Resignation, Removal or Death . . . . . . . . . . . . . . . . . . . . 2
Section 2.4 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III
STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 3.1 Authorized Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 3.2 Voting and Non-Voting Common Stock . . . . . . . . . . . . . . . . . 3
Section 3.3 Classification of Stock . . . . . . . . . . . . . . . . . . . . . . . 3
Section 3.4 Dividend Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 3.5 Rights Upon Liquidation . . . . . . . . . . . . . . . . . . . . . . . 3
Section 3.6 Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.7 Repurchases of Stock . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.8 Preemptive Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE IV
RESTRICTIONS ON TRANSFER AND OWNERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 4.1 Restrictions on Transfer and Ownership on Non-Voting Common
Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 4.2 Restrictions on Transfer and Ownership on Voting Common Stock . . . . 4
Section 4.3 Transfers and Acquisitions Which Would Disqualify Ramco-
Gershenson Properties Trust's REIT Status . . . . . . . . . . . . . . . . 5
</TABLE>
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<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE V
CONFLICTS OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5.1 Conflicts of Interest . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VI
LIMITATION OF LIABILITY AND INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 6
Section 6.1 Limitation of Director and Officer Liability . . . . . . . . . . . 6
Section 6.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 7.1 Amendment of Charter . . . . . . . . . . . . . . . . . . . . . . . 8
Section 7.2 Amendment of Bylaws . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 7.3 Provisions in Conflict with Law or Regulations . . . . . . . . . . 8
</TABLE>
ii
<PAGE> 391
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
RAMCO-GERSHENSON,INC.
The Company originally filed its Articles of Incorporation
with the Secretary of State of the State of Michigan on June 5, 1975.
ARTICLE I
THE COMPANY; DEFINITIONS
Section 1.1 Name. The name of the Company is
Ramco-Gershenson, Inc.
Section 1.2 Principal Office and Resident Agent. The name
and address of the Company's resident agent for service of process in the State
of Michigan is ________________________. The Company's principal office in the
State of Michigan is located at the same address. The Company may have such
offices or places of business within or without the State of Michigan as the
Directors may from time to time determine.
Section 1.3 Purpose and Powers. The purpose for which the
Company is formed and the business or objects to be carried on and promoted by
it, within the State of Michigan or elsewhere, is to engage in any lawful act
or activity for which corporations may be formed under the Business Corporation
Act of Michigan. Without limiting the foregoing, the purposes for which the
Company is formed include the following:
A. To engage in the business of managing retail and
shopping center properties; and
B. To enter into any lawful transaction and engage in
any lawful activity incidental to or in furtherance
of the foregoing purposes.
Section 1.4 Definitions. As used in this Charter, the
following terms shall have the following meanings unless the context otherwise
requires:
"Bylaws" means the Bylaws of the Company adopted by the Board
of Directors.
"Charter" means these Articles of Incorporation, as amended or
supplemented from time to time.
"Code" means the Internal Revenue Code of 1986, as amended.
"Stock" means transferable shares of capital stock of the
Company of any class or series.
<PAGE> 392
"Stockholders" means holders of record of outstanding Stock.
ARTICLE II
DIRECTORS
Section 2.1 Number. The Company shall have a Board of
Directors initially consisting of five (5) Directors, which number may be
increased or decreased from time to time by the unanimous vote of the Directors
then in office or by a majority vote of the Stockholders entitled to vote
thereon; provided, however, that the total number of Directors shall be not
fewer than three (3) (but in no event less than the minimum number permitted by
the Business Corporation Act of Michigan) and not more than thirteen (13). No
reduction in the number of Directors shall cause the removal of any Director
from office prior to the expiration of his term.
Section 2.2 Election. Directors will be elected to hold
office at each annual meeting of Stockholders for a term expiring at the next
succeeding annual meeting by a vote of a plurality of Stockholders entitled to
vote thereon. Each Director will hold office for the term for which he is
elected and until his successor is duly elected and qualified. Newly created
directorships resulting from any increase in the authorized number of directors
shall be filled by a vote of the Stockholders entitled to vote thereon or a
vote of a majority of the entire Board of Directors (as increased) and any
vacancies on the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office, or other cause shall be
filled by a vote of the Stockholders entitled to vote thereon or a majority of
the Directors then in office.
Section 2.3 Resignation, Removal or Death. Any Director may
resign from the Board of Directors or any committee thereof at any time by
written notice to the Board of Directors, effective upon execution and delivery
to the Company of such notice or upon any future date specified in the notice.
A Director may be removed from office, but only for cause and only at a meeting
of the Stockholders called for that purpose, by the affirmative vote of the
holders of not less than two-thirds of the Stock then outstanding and entitled
to vote in the election of Directors, voting together as a single class.
Section 2.4 Powers. Subject to the express limitations
herein or in the Bylaws, the business and affairs of the Company shall be
managed under the direction of the Board of Directors. This Charter shall be
construed with a presumption in favor of the grant of power and authority to
the Directors.
ARTICLE III
STOCK
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<PAGE> 393
Section 3.1 Authorized Stock. The total number of shares of
Stock of all classes which the Company has authority to issue is one thousand
(1,000) shares, par value $.01 per share, consisting of five hundred (500)
shares of Voting Common Stock and five hundred (500) shares of Non-Voting
Common Stock.
Section 3.2 Voting and Non-Voting Common Stock. The powers,
preferences and rights of, and the qualifications of, and limitations and
restrictions upon, the Voting and Non-Voting Common Stock shall be identical
except (unless and to the extent otherwise made mandatory by law): (i) the
holders of Non-Voting Common Stock shall have no right to vote for the election
of Directors or for any other purpose, except as set forth in Section 7.1
hereof; (ii) the holders of Voting Common Stock shall have no right to share in
any dividend declared or distribution made by the Company; and (iii) the
holders of Voting Common Stock are subject to the transfer and ownership
restrictions provided in Article IV. The aggregate par value of all the
authorized shares is $10.00.
Section 3.3 Classification of Stock. (a) Subject to clauses
(b) and (c) below, the Board of Directors may classify or reclassify any
unissued Shares of Stock from time to time by setting or changing the rights,
powers and preferences of such shares of Stock.
(b) The Board of Directors may not issue any shares
of Stock that have a preference over the Non-Voting Common Stock with respect
to either (i) dividends or (ii) distributions in the liquidation, dissolution
or winding up of the Company.
(c) The Shares shall not be subject to redemption.
Section 3.4 Dividend Rights. As provided in Section 3.1
above, only the holders of shares of Non-Voting Common Stock shall be entitled
to receive any dividends declared by the Board of Directors out of funds
legally available therefor. The Company shall declare a dividend within 45
days of the end of each fiscal quarter out of net cash available for
distribution, after establishing a reasonable reserve fund to meet
contingencies and existing liabilities of the Company.
Section 3.5 Rights Upon Liquidation. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of, or any
distribution of the assets of, the Company, each holder of shares of Non-Voting
Common Stock shall be entitled (after payment or provision for payment of the
debts and other liabilities of the Company and to the holders of any class of
Stock hereafter classified or reclassified having a preference on distributions
in the liquidation, dissolution or winding up of the Company) to share ratably
in the remaining net assets of the Company, together with the holders of any
other class of Stock hereafter classified or reclassified not having a
preference on distributions in the liquidation, dissolution or winding up of
the Company. As provided in Section 3.1 above, holders of Voting Common Stock
shall not be entitled to share in any distribution of assets of the Company
upon its voluntary or involuntary liquidation, dissolution or winding up, or
otherwise.
3
<PAGE> 394
Section 3.6 Voting Rights. Except as set forth in Section
7.1 hereof, each share of Voting Common Stock shall have one vote, and except
as otherwise provided in respect of any class of Stock hereafter classified or
reclassified, the exclusive voting power of all Stock of the company for all
purposes shall be vested in the holders of Voting Common Stock.
Section 3.7 Repurchases of Stock. The Board of Directors
shall not authorize the repurchase of any shares of Stock other than Non-Voting
Common Stock.
Section 3.8 Preemptive Rights. No holder of any Stock or any
other securities of the Company, whether now or hereafter authorized, shall
have any preemptive rights to subscribe for or purchase any Stock or any other
securities of the Company other than such rights, if any, as the Board of
Directors, in its sole discretion, may fix; and any Stock or other securities
which the Board of Directors may determine to offer for subscription may,
within the Board of Directors' sole discretion, be offered to the holders of
any class, series or type of Stock or other securities at the time outstanding
to the exclusion of holders of any or all other classes, series or types of
Stock or other securities at the time outstanding.
ARTICLE IV
RESTRICTIONS ON TRANSFER AND OWNERSHIP
Section 4.1 Restrictions on Transfer and Ownership on
Non-Voting Common Stock. Except as otherwise provided herein, shares of
Non-Voting Common Stock shall be freely transferable by the record owner
thereof, and shall bear no restrictions on ownership.
Section 4.2 Restrictions on Transfer and Ownership on Voting
Common Stock. Shares of Voting Common Stock shall be subject to the following
restrictions on transfer and ownership. For purposes of this Article IV, a
"transfer" of shares of Stock shall mean any sale, transfer, gift,
hypothecation, pledge, assignment, or other disposition, whether voluntary or
involuntary, by operation of law or otherwise.
4.2.1 Restrictions on Transfer. Except in
the case of any issuance or exchange of any other Stock, securities or
property pursuant to any recapitalization, reorganization, merger or
consolidation, no holder of Voting Common Stock shall transfer any
shares of Voting Common Stock of the Company to any person, trust,
association, partnership, firm, corporation or other legal entity,
without first giving written notice to the Offeree (as hereinafter
defined) of (i) the number of shares of Voting Common Stock which such
holder proposes to dispose, (ii) the proposed transferee thereof, and
(iii) the bona fide terms of the proposed transfer. Such notice shall
constitute an offer to sell or transfer to the Offeree all, but not
less than all, of the shares of Voting Common Stock which such holder
proposes to dispose, at the price (net of any commissions or discounts
that would have been deducted from the proceeds of the proposed
transfer) and on the bona fide terms set forth in the notice; provided,
that the Offeree shall have the right to
4
<PAGE> 395
substitute cash, shares of beneficial interest of Ramco-Gershenson
Properties Trust, limited partnership interests in Ramco-Gershenson
Properties, L.P. or other consideration of a similar type and
substantially equivalent value if the Offeree determines in good faith
that it cannot practicably pay the consideration offered in the bona
fide offer. As used herein, the term "Offeree" shall mean (i)
Ramco-Gershenson Properties, L.P. or the Company (who shall each have
sixty (60) days from the date of receipt of the notice to accept the
offer), (ii) if neither Ramco-Gershenson Properties, L.P. nor the
Company purchases the shares offered, any Successor to the holder (as
defined below) (who shall have an additional sixty (60) days to accept
such offer), or (iii) if there is no Successor at such time, the
Secretary of the Company (who shall have the same time to accept the
offer as would have a Successor). If such offer is not accepted by
the Offeree, then such holder of the Voting Common Stock shall be free
to dispose of all, but not less than all, of the shares of Voting
Common Stock he or it has proposed to dispose; provided, however, that
any such disposition must be consummated within sixty (60) days from
the expiration of the longest period during which an Offeree could
have accepted such offer, and such disposition must be strictly in
accordance with the bona fide terms of the proposed disposition
described in the written notice to the Offeree. If such disposition
is not completed within the sixty (60) day period, the offer described
above shall be considered as not having been made. Any change in the
price or terms of the disposition of the shares of Voting Common Stock
from the price and terms described in the written notice shall
constitute a new offer for which a new notice and sixty (60) day
offering period must be given.
4.2.2 Restrictions on Ownership. Upon the
termination of the employment with the Company of a holder of Voting
Common Stock for any reason (including, but not limited to, death,
disability or voluntary separation), Ramco-Gershenson Properties, L.P.
and the Company shall have the option to purchase all shares of Voting
Common Stock of the Company owned by such holder for cash within sixty
(60) days after the date of such termination (the "Termination Date").
If neither Ramco-Gershenson Properties, L.P. nor the Company purchases
the shares subject to such option, then the holder's successor as an
officer of the Company (the "Successor") will have the option to
purchase the shares owned by the holder for cash within the later of
(i) sixty (60) days after the Termination Date, and (ii) thirty (30)
days after the Successor is elected or appointed as Successor. The
option price of the shares to be purchased shall be the net book value
of such shares as reflected on the Company's regular financial
statements on the Termination Date, or if such date is not the last
day of the month, then as of the last day of the month preceding such
Termination Date, reduced by any distributions of cash or property
(except Voting Common Stock) made since such date.
Section 4.3 Transfers and Acquisitions Which Would Disqualify
Ramco-Gershenson Properties Trust's REIT Status. Any transfer or acquisition
of Voting or Non-Voting Common Stock which would result in the disqualification
of Ramco-Gershenson Properties Trust as a real estate investment trust under
the Code shall be void ab initio.
5
<PAGE> 396
ARTICLE V
CONFLICTS OF INTEREST
Section 5.1 Conflicts of Interest. Any Director or officer
individually, or any firm of which any Director or officer may be a member, or
any corporation or association of which any Director or officer may be a
director or officer or in which any Director or officer may be interested as
the holder of any amount of its capital stock or otherwise, may be a party to,
or may be pecuniarily or otherwise interested in, any contract or transaction
of the Company, and, in the absence of fraud, no contract or other transaction
shall be thereby affected or invalidated; provided, however, that (a) such fact
shall have been disclosed or shall have been known to the Board of Directors,
or the committee thereof that approved such contract or transaction, and such
contract or transaction shall have been approved or satisfied by the
affirmative vote of a majority of the disinterested Directors, or (b) such fact
shall have been disclosed or shall have been known to the Stockholders entitled
to vote, and such contract or transaction shall have been approved or ratified
by a majority of the votes cast by the Stockholders entitled to vote, other
than the shares of Voting Common Stock owned of record or beneficially by the
interested Director or corporation, firm or other entity, or (c) the contract
or transaction is fair and reasonable to the Company. Any Director of the
Company who is also a director or officer of or interested in such other
corporation or association, or who, or the firm of which he is a member, is so
interested, may be counted in determining the existence of a quorum at any
meeting of the Board of Directors of the Company which shall authorize any such
contract or transaction, with like force and effect as if he were not such a
director or officer of such other corporation or association or were not so
interested or were not a member of a firm so interested.
ARTICLE VI
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 6.1 Limitation of Director and Officer Liability. To
the fullest extent permitted by Michigan statutory or decisional law, as
amended or interpreted, no Director or officer of the Company shall be liable
to the Company or to any Stockholder for money damages. Neither the amendment
nor repeal of this Section 6.1, nor the adoption or amendment of any other
provision of this Charter inconsistent with this Section 6.1, shall apply to or
affect in any respect the applicability of the preceding sentence with respect
to any act or failure to act which occurred, in whole or in part, prior to such
amendment, repeal or adoption.
Section 6.2 Indemnification. The Company shall indemnify (i)
its Directors and officers, whether serving the Company or at its request any
other entity, to the full extent required or permitted by Michigan statutory or
decisional law, now or hereafter in force, including the advance of expenses
under the procedures and to the full extent permitted by Michigan laws, and
(ii) other employees and agents of the Company whether serving the Company or
at its request any other entity, to such extent as shall be authorized by the
Directors
6
<PAGE> 397
or the Bylaws and as permitted by law. The foregoing rights of indemnification
shall not be exclusive of any other rights to which those seeking
indemnification may be entitled. The Directors may take such action as is
necessary to carry out these indemnification provisions and are expressly
empowered to adopt, approve and amend from time to time such bylaws,
resolutions or contracts implementing such provisions or such further
indemnification arrangements as may be permitted by law. No amendment of this
Charter or repeal of any of the provisions herein shall limit or eliminate (i)
the right of indemnification provided hereunder with respect to acts or
omissions occurring, in whole or in part, prior to such amendment or repeal, or
(ii) the rights granted under indemnification agreements entered into by the
Company and its Directors, officers, agents and employees.
7
<PAGE> 398
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendment of Charter. This Charter may be
amended by the affirmative vote of (a) the holders of not less than a majority
of the shares of Voting Common Stock then outstanding and entitled to vote
thereon, and (b) the holders of not less than a majority of the shares of
Non-Voting Common Stock then outstanding and entitled to vote thereon, each
voting as a class. Notwithstanding the foregoing, the vote of all of the
shares of Voting Common Stock outstanding and entitled to vote thereon shall be
required to amend Article IV of this Charter.
Section 7.2 Amendment of Bylaws. The Board of Directors
shall have the power to make, alter, amend, change, add to or repeal the Bylaws
of the Company in accordance with the terms of the Bylaws.
Section 7.3 Provisions in Conflict with Law or Regulations.
7.3.1 The provisions of this Charter are
severable, and as long as Ramco-Gershenson Properties Trust is the
holder of the Non-Voting Common Stock, if the Directors shall
determine that any one or more of such provisions are in conflict with
Ramco-Gershenson Properties Trust's desire to maintain its status as a
real estate investment trust under the Code, or other applicable
federal or state laws, the conflicting provisions shall be deemed
never to have constituted a part of this Charter, even without any
amendment of this Charter pursuant to Section 7.1 hereof; provided,
however, that such determination by the Directors shall not affect or
impair any of the remaining provisions of this Charter or render
invalid or improper any action taken or omitted prior to such
determination. No Director shall be liable for making or failing to
make such a determination.
7.3.2 If any provision of this Charter or
any application of such provision shall be held invalid or
unenforceable by any federal or state court having jurisdiction, such
holding shall not in any manner affect or render invalid or
unenforceable such provision in any other jurisdiction, and the
validity of the remaining provisions of this Charter shall not be
affected. Other applications of such provision shall be affected only
to the extent necessary to comply with the determination of such
court.
8
<PAGE> 399
IN WITNESS WHEREOF, the undersigned, the ________ of the
Company, has signed these Articles of Incorporation, acknowledging the same to
be my act, on _________ __, 1995.
By:
--------------------------------
9
<PAGE> 400
EXHIBIT P
FIRST AMENDMENT TO AGREEMENT
THIS FIRST AMENDMENT TO AGREEMENT ("First Amendment") is made as of
this ________ day of __________________, 1995, by and between _____________
___________________________, a __________________________________ ("Owner"),
and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership
("Recipient").
R E C I T A L S:
A. Owner, as Owner, and Recipient, as Recipient, are parties to
that certain Agreement dated December 29, 1994 with respect to Recipient's
acquisition from Owner of the property known as "______________________," as
more particularly described in the Agreement (the "Premises").
B. Owner and Recipient desire to amend certain terms and
conditions contained in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby, acknowledged, Owner and Recipient hereby agree as
follows:
1. The Agreement is hereby amended in its entirety by deleting all
references to the date of October 1, 1994 and substituting in lieu thereof
"January 1, 1995."
2. Section 2(b) of the Agreement is hereby amended by (i) deleting
the proviso (relating to changing the formula) from the third sentence and
deleting the parenthetical (relating to the paydown of debt) from the fourth
sentence.
3. Section 4(a) of the Agreement is hereby amended by deleting the
date of July 15, 1995 and substituting in lieu thereof "December 31, 1995."
4. Anything contained in Section 4 of the Agreement to the
contrary notwithstanding, at Closing, Owner shall execute and deliver to
Recipient a disclosure of any material variations, as of the Closing Date,
from, rather than a confirmation of, the representations and warranties set
forth in the Agreement.
5. Anything contained in Section 6(d)(iii) of the Agreement to the
contrary notwithstanding, Owner shall perform any and all acts, and make any
and all payments, necessary to cause the representations and warranties of
Owner in the Agreement to be true and correct as of the date made, or as of
the Closing Date, if then required to be true and correct.
6. Anything contained in Section 7(e) of the Agreement to the
contrary notwithstanding, in the event that, at the time of Closing, Owner has
outstanding obligations which are the responsibility of Owner but which are not
payable at that time because the work
<PAGE> 401
relating thereto has not been completed, Owner shall, at Closing, deposit with
the Title Company an amount equal to the reasonable estimate of the amount of
such outstanding obligations. Such amount shall be held in escrow by the Title
Company pursuant to escrow instructions mutually acceptable to Owner and
Recipient, and shall be released to Owner upon proof reasonably satisfactory to
Recipient that such obligations have been paid, or that such funds shall be
used to pay such outstanding obligations.
7. Section 7(g) of the Agreement is hereby amended by deleting the
date of June 1, 1994 and substituting in lieu thereof December 31, 1994.
8. Section 8(c) of the Agreement is hereby amended by deleting the
last reference to "Owner" and substituting in lieu thereof "Recipient."
9. The last sentence of Section 9(l)(3) is hereby deleted in its
entirety.
10. The representation of Owner made in Section 9(l)(5)(b) shall be
subject to Section 7(e) of the Agreement and shall not be limited to Leases
executed prior to January 1, 1995.
11. Section 20(a) of the Agreement is hereby amended by inserting
the words "After Closing" at the beginning of the first sentence.
12. Anything contained in Section 20(b) of the Agreement to the
contrary notwithstanding, Indemnity Collateral shall mean (i) the Operating
Partnership Interests (including OP Units) and Shares acquired directly or
indirectly by the Ramco Group (but not any other partners of Owner) in
connection with the payment of the consideration by Recipient under this
Agreement, and the other related agreements between the Ramco Entities and the
Recipient, (ii) any Shares received by the Ramco Group (but not any other
partners of Owner) as a result of the exchange of OP Units for Shares; and
(iii) distributions, share splits or other securities received with respect to
the Shares or OP Units described in clauses (i) and (ii) above.
13. Anything contained in Section 20 of the Agreement to the
contrary notwithstanding, prior to Closing, in the event that either party
hereto breaches any representation, warranty or covenant set forth in this
Agreement (the "Defaulting Party") the other party hereto shall have the right
to pursue all remedies at law or equity against the Defaulting Party and/or the
Premises, provided, however, that in the event that Owner is the Defaulting
Party as a result of the breach of a warranty set forth herein, Recipient's
remedies shall be limited to pursuing a damage claim against the Ramco Group,
and Recipient shall have no rights or remedies against Owner or any partner in
Owner who is not a member of the Ramco Group.
14. Exhibit "X" attached to the Agreement replaced by Exhibit "X"
attached hereto.
15. Capitalized terms, unless otherwise defined in this First
Amendment, shall have the meanings ascribed to them in the Agreement.
16. This First Amendment shall be deemed binding upon the parties
hereto and their respective successors and assigns.
2
<PAGE> 402
17. The Agreement as herein amended is hereby confirmed and ratified
and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto, intending legally to be bound,
have executed this First Amendment as of the day and year first above written.
RECIPIENT:
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership
By: RAMCO REIT, INC.,
a Delaware corporation,
General Partner
By: _______________________________
Richard Gershenson
Vice President
OWNER:
__________________________________,
a ________________________________
By: ____________________________________
3
<PAGE> 403
EXHIBIT Q
TAX AGREEMENT
TAX AGREEMENT dated as of ____ ___, 1995 by and between Atlantic
Realty Trust, a Maryland real estate investment trust (the "Atlantic") and RPS
Realty Trust, a Massachusetts business trust ("RPS").
WHEREAS, RPS has formed Atlantic, and on this day has (i) contributed
the Assets (as defined below) to Atlantic and, (ii) distributed the stock of
Atlantic to its shareholders.
WHEREAS, in order to induce RPS to distribute Atlantic's stock to RPS'
shareholders, Atlantic has agreed to assume certain tax liabilities of RPS
should they arise.
WHEREAS, it is Atlantic's intention to contest in good faith any Tax
Contest that is likely to result in the loss of RPS' ability to be treated as a
real estate investment trust under the Code.
NOW, THEREFORE, the parties hereto, in consideration of the foregoing
and intending to be legally bound, hereby agree as follows:
SECTION 1. DEFINITIONS. Each reference contained in this agreement to:
1.1 "ASSETS" shall mean those assets listed on Schedule A attached
hereto.
1.2 "BUSINESS DAY" shall mean any day that is not a Saturday or
Sunday, or a day on which banks located in The City of New York are authorized
or required to be closed.
1.3 "CODE" shall mean the Internal Revenue Code of 1986, as amended.
1.4 "FINAL DETERMINATION" shall mean (a) a decision, judgment, decree,
or other order by any court of competent jurisdiction, which has become final
and is either no longer subject to appeal or for which a determination not to
appeal has been made and approved by Atlantic; or (b) a closing agreement made
with any Taxing Authority and approved by Atlantic.
1.5 "ASSUMED TAX" shall mean any Tax of RPS resulting from a Tax
Contest that arises as a consequence of the Internal Revenue Service's current
ongoing examination of RPS' tax returns (other than any Tax of RPS that relates
to actions or events occurring or any tax return position taken by RPS after the
date hereof).
1.6 "TAX OR TAXES" shall mean U.S. federal, state or local income or
franchise taxes or other taxes imposed on or with respect to net income or
capital, together with any interest or penalties or additions to tax imposed
with respect thereto.
1.7 "TAX CONTEST" shall mean any audit, examination, suit, action, or
proceeding involving a Taxing Authority.
<PAGE> 404
1.8 "TAXING AUTHORITY" shall mean any governmental authority having
jurisdiction over the assessment, determination, collection, or other imposition
of Tax.
SECTION 2. ASSUMED TAX, REFUNDS AND DEFICIENCY DIVIDENDS.
2.1 IN GENERAL. Except as set forth in Section 2.4 below, Atlantic
hereby assumes and agrees to perform all obligations of RPS relating to the
Assumed Tax; provided, however, Atlantic shall have no obligation to perform or
make any payment in respect of any Assumed Tax until a Final Determination with
respect to such Assumed Tax has been made.
2.2 AMOUNT OF ASSUMED TAX PAYMENT. Atlantic shall pay to the
Applicable Taxing Authority the amount of Assumed Tax required to be paid
pursuant to the Final Determination together with any interest, if any, or
penalties, if any, imposed by the Taxing Authority on such amount at least five
days before such amount is due to the applicable Taxing Authority.
2.3 REPAYMENT OF ASSUMED TAX PAYMENT. The amount of any Assumed Tax
payment made by Atlantic pursuant to this agreement shall be repaid by RPS to
Atlantic upon the receipt by RPS of any refund of such tax and/or interest
and/or penalty.
2.4 DEFICIENCY DIVIDEND. RPS agrees that to the extent any Tax for
which Atlantic is obligated to pay pursuant to this Section 2 can be mitigated
or avoided through the declaration and payment of a "deficiency dividend" as
provided in section 860 of the Code, it shall make such deficiency dividend. In
such event Atlantic's sole obligation with respect to its obligations hereunder
shall be to make a payment to RPS in an amount equal to the "deficiency
dividend" described in this Section 2.4.
SECTION 3. TAX CONTESTS.
3.1 IN GENERAL. Subject to Section 3.2, Atlantic shall be entitled to
control and conduct any Tax Contests relating to the Assumed Tax. Costs of any
such Tax Contests are to be borne by Atlantic. RPS shall deliver to Atlantic any
powers of attorney required to allow Atlantic and its counsel and
representatives to represent the RPS in connection with any such Tax Contests
and shall use its best efforts to provide Atlantic with such assistance and
information as may be reasonably requested by Atlantic in connection with such
Tax Contest.
3.2 CONSENTS TO SETTLEMENTS. RPS shall not consent or agree to the
settlement of any Tax Contests relating to any Assumed Tax without the prior
written consent of Atlantic. To the extent RPS fails to obtain Atlantic's prior
written consent to any settlement which is subject to this agreement, Atlantic
shall be relieved from any obligation to make any payments under this agreement
with respect to the Assumed Tax covered by the settlement.
3.3 NOTICE OF TAX CONTESTS. RPS agrees to give notice to Atlantic
within 5 Business Days of the assertion or commencement of any Tax Contest with
regard to any Assumed Tax. The failure of RPS to notify Atlantic of any Tax
Contest within the time specified in the preceding sentence shall not relieve
Atlantic from any obligation to make a payment in respect of an Assumed Tax
under this agreement except to the extent Atlantic demonstrates that the defense
of such action is prejudiced thereby.
Q-2
<PAGE> 405
SECTION 4. RIGHT TO REFUNDS. Atlantic shall be entitled to any refund
of any Tax attributable to any payments it has made pursuant to Section 2 hereof
to the extent not previously repaid pursuant to Section 2.3 and shall be paid
any such refund, including interest thereon, promptly upon receipt thereof by
RPS. Atlantic shall have the right to determine whether any claim for refund for
such Tax shall be made by or on behalf of RPS and shall notify the RPS of its
intent to file such a claim. If Atlantic elects to make a claim for refund, RPS
shall cooperate fully in connection therewith.
SECTION 5. ASSET DISPOSITIONS. Atlantic shall not dispose of any
material assets except in an arms' length transaction if, after giving effect to
such transfer, the assets of Atlantic would not be sufficient to satisfy its
obligations under this Agreement.
SECTION 6. DURATION. The obligations and liabilities of Atlantic and
RPS arising under this agreement shall continue in full force and effect until
all such obligations hereunder have been met and such liabilities have been paid
in full, and shall be binding upon and inure to the benefit of the parties
hereto.
SECTION 7. NOTICES. All notices, consents and other communications
provided for herein shall be in writing and shall be deemed to have been duly
given when (a) delivered by hand, (b) sent by telecopier (with receipt
confirmed), provided that a copy is mailed by registered mail, return receipt
requested, or (c) when received by the addressee, if sent by Express Mail,
Federal Express or other express delivery service (receipt requested), in each
case to the appropriate addresses and telecopier numbers set forth below (or to
such other addresses or telecopier numbers as a party may designate as to itself
by notice to the other parties):
(a) If to Atlantic:
Atlantic Realty Trust
747 Third Avenue
New York, New York 10017
Attention: Joel M. Pashcow
Telecopier: (212) 355-3080
with copies to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attention: Steven L. Lichtenfeld
Telecopier: (212) 856-7812
and
Q-3
<PAGE> 406
Wolf, Block, Schorr & Solis-Cohen
Packard Building, 12th Floor
S.E. Corner 15th & Chestnut Streets
Philadelphia, Pennsylvania 19102-2678
Attention: William A. Rosoff
Telecopier: (215) 977-2334
(b) If to RPS:
Ramco-Gershenson Properties Trust (f/k/a RPS Realty Trust)
27600 Northwestern Highway
Suite 200
Southheld, Michigan 48034
Attention: Dennis Gershenson
Telecopier: (810) 350-9925
with copies to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attention: Steven L. Lichtenfeld
Telecopier: (212) 856-7812
and
Wolf, Block, Schorr & Solis-Cohen
Packard Building, 12th Floor
S.E. Corner 15th & Chestnut Streets
Philadelphia, Pennsylvania 19102-2678
Attention: William A. Rosoff
Telecopier: (215) 977-2334
and
Honigan Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226-3582
Attention: Richard Burstein, Esq.
Telecopier: (313) 250-7800
SECTION 8. GOVERNING LAW. This agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 9. COUNTERPARTS. This agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, and such counterparts together shall constitute and be one and the
same instrument.
Q-4
<PAGE> 407
SECTION 10. HEADINGS. The headings of the Sections of this agreement
have been inserted for convenience of reference only and shall in no way
restrict or otherwise modify any of the terms or provisions hereof.
SECTION 11. AMENDMENTS, SUPPLEMENTS, ETC. Neither this Tax Agreement
nor any of the terms hereof may be amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
enforcement of such change is sought.
IN WITNESS WHEREOF, Atlantic and the RPS have each caused this
agreement to be duly executed in New York, New York as of the date first set
forth above.
RPS REALTY TRUST
By:____________________________________
Title:_________________________________
ATLANTIC REALTY TRUST
By:____________________________________
Title:_________________________________
<PAGE> 408
SCHEDULE A
MORTGAGE LOANS
<TABLE>
<CAPTION>
Average Annual
Interest Rate
-------------------
Total
Principal RPS Net Date
Amount of Funds Allowance Carrying Funded (or Maturity Current Accrued
Property Loan Advanced for loss Amount Modified) Date Interest Interest
- -------- ------------ ----------- ------------- ----------- ---------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
SHOPPING CENTERS
Mt. Morris Commons
Genessee Township, MI $ 2,700,000 $ 2,700,000 $(1,000,000) $ 1,700,000 7/86 7/01 11.20% 2.00%
Copps Hills Plaza
Ridgefield, CT 9,795,661 3,563,948 (350,000) 3,213,948 9/92 7/96 6.00% .50%
Branhaven Plaza
Shopping Center
Branford, CT 8,733,772 2,800,000 -- 2,800,000 7/86 8/99 12.00% 2.25%
Holiday Park
Shopping Center
Merrick, NY 5,966,564 1,916,564 -- 1,916,564 12/92 12/95 10.00% --
1733 Massachusetts
Avenue 2,200,000 2,200,000 -- 2,200,000 6/87 6/99 8.58% 1.42%
Lexington, MA
1-5 Wabash Ave
Chicago 2,850,000 2,850,000 -- 2,850,000 7/93 3/96 5.00% --
Hylan Plaza
Shopping Center
Staten Island, NY 25,000,000 25,000,000 (6,000,336) 18,999,664 1/94 2/00 7.50% 4.50%
Industrial
Simmons
Manufacturing
Warehouse
Jacksonville, FL 1,500,000 1,500,000 -- 1,500,000 8/86 8/01 10.00% 2.00%
OFFICE BUILDINGS
New England Telephone
Co.
Manchester, NH 3,000,000 3,000,000 (3,200,000) (200,000) 4/90 12/99 6.92% 3.58%
</TABLE>
(table continued next page)
A-1
<PAGE> 409
<TABLE>
<CAPTION>
Average Annual
Interest Rate
-------------------
Total
Principal RPS Net Date
Amount of Funds Allowance Carrying Funded (or Maturity Current Accrued
Property Loan Advanced for loss Amount Modified) Date Interest Interest
- -------- ------------ ----------- ------------- ----------- ---------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Rector Building
New York, NY 25,000,000 3,000,000 (2,000,000) 1,000,000 3/95 3/04 -- 6.00%
NCR Building
Century City, CA 4,818,493 468,493 (231,000) 237,493 7/93 12/95 10.00% --
------------ ----------- ------------ -----------
TOTALS $ 69,564,490 $48,999,005 $ 12,781,336 $36,217,669
============ =========== ============ ===========
</TABLE>
REAL PROPERTIES
9 North Wabash Avenue. The 9 North Wabash Avenue property is a
six-story building with approximately 52,000 square feet of leasable space
located in Chicago, Illinois. The property was acquired on July 7, 1993 by 9
North Wabash Corp., a wholly-owned subsidiary of RPS, and is owned by that
entity free and clear of any material liens or other encumbrances. The entire
Wabash property was leased to Lane Bryant, a women's apparel retailer, pursuant
to a lease which expired on June 30, 1995. However, on July 11, 1995, Lane
Bryant and RPS entered into an agreement pursuant to which Lane Bryant agreed to
remain in the property through December 31, 1995, at a reduced rental rate equal
to 7% of gross sales. Lane Bryant has occupied 100% of the leasable space for
each of the last five years. RPS has entered into an exclusive sales and lease
arrangement with a local broker to sell or lease this property. Real estate
taxes on this property for the year ended December 31, 1994 were approximately
$142,000. The Company believes the property is adequately covered by insurance.
The Company's depreciable basis in the property is approximately $3,300,000,
which is depreciated using the straight-line method and a 39-year predictable
life. As of January 1, 1995, RPS' independent real estate appraisers appraised
the value of this property at $2,400,000, which is approximately $851,000 less
than its June 30, 1995 carrying value. The Company believes that the decline in
value represented by the appraisal is temporary because the property's carrying
value is recoverable through future operations and the eventual disposition
thereof, on a going concern basis of accounting. Upon consummation of the Ramco
Acquisition, the Company will adopt the liquidation basis of accounting at which
time the property will be classified as held for sale and will be stated at its
net realizable value. See the Pro Forma Financial Statements.
Norgate Shopping Center. The Norgate Shopping Center is a one-story
shopping center located in Indianapolis, Indiana (Marion County). The property
was acquired on June 23, 1994 by Norgate Shops, Corp., a wholly-owned subsidiary
of RPS, and is owned by that entity free and clear of any liens or other
encumbrances. The shopping center contains approximately 208,000 square feet of
leasable space, approximately 76% of which was leased and occupied as of August
31, 1995. Major tenants (i.e., tenants who accounted for 10% or more of the
revenues at such property during the six month period ended June 30, 1995) are
Kohl's Oakland, Inc., a department store retail chain, and Consolidated Stores,
Inc., a discount variety store retail chain. These two tenants lease
approximately 65,000 and 37,300 square feet, respectively, which constitutes 31%
and 18%, respectively, of the total leasable space. The Kohl's Oakland lease
expires in January 1999 and
A-2
<PAGE> 410
provides for annual rental payments of approximately $211,000 and the
Consolidated Stores lease is month to month and provides for rental payments of
approximately $140,000 on an annualized basis. The Kohl's lease contains three
5-year tenant renewal options. Leases for approximately 45,642 feet are due to
expire on or prior to December 31, 1995. The average base rent per square foot
paid by tenants at such property as of June 30, 1995 excluding percentage rent
and similar provisions was $3.43 (approximately $3.50 including percentage rent
based on 1994 revenues). The Company believes the property is adequately covered
by insurance. The Company's depreciable basis in the property is approximately
$4,278,000, which is depreciated using the straight-line method and a 39-year
predictable life. On August 1, 1994, RPS' independent real estate appraisers
appraised the value of this property at $3,900,000, which is approximately
$570,000 less than its June 30, 1995 carrying value. Because RPS has received
several offers to purchase this property since April 1995, the Company believes
that it can recover the June 30, 1995 carrying value through future operations
and the eventual disposition thereof. Upon consummation of the Ramco
Acquisition, the Company will adopt the liquidation basis of accounting at which
time the property will be classified as held for sale and will be stated at its
net realizable value.
Limited Partnership Interest. The Company is expected to own a 20%
limited partnership interest in a limited partnership that owns an 18-story
building with approximately 138,500 square feet of leasable space used for
office, showroom and retail purposes, located at 5 North Wabash Avenue in
Chicago, Illinois. As of June 30, 1995, the book value of the Company's 20%
limited partnership interest was $460,000. The Company will be entitled to 20%
of the net income (loss) and distributions from the limited partnership, but
will not be allocated such net income (loss) or distributions until the mortgage
on the property is repaid and, in addition, the borrower receives $5,000,000
from the disposition of the property. See Note 3(d) to the Financial Statements.
A-3
<PAGE> 1
EXHIBIT 99.1
<PAGE> 2
FOR IMMEDIATE RELEASE
CONTACT FOR RPS: JOEL PASHCOW
RPS REALTY TRUST
(212) 702-8566
CONTACT FOR RAMCO: DENNIS GERSHENSON
RAMCO-GERSHENSON, INC.
(810) 350-9900
RPS REALTY TRUST AND RAMCO-GERSHENSON, INC.
REACH AMENDED AGREEMENT
NEW YORK, NEW YORK, AND SOUTHFIELD, MICHIGAN, JANUARY 2, 1996
- -- RPS REALTY TRUST (NYSE: RPS) AND RAMCO-GERSHENSON, INC. JOINTLY ANNOUNCED
TODAY THAT THEY HAVE ENTERED INTO AN AMENDED DEFINITIVE AGREEMENT RELATING TO
THE PREVIOUSLY ANNOUNCED RPS ACQUISITION OF RAMCO AND SUBSTANTIALLY ALL OF ITS
REAL ESTATE ASSETS. THE PROPOSED TRANSACTION WITH RAMCO, WHICH IS CURRENTLY
ANTICIPATED TO CLOSE IN THE FIRST QUARTER OF 1996, IS SUBJECT TO A NUMBER OF
CONDITIONS. THESE INCLUDE RPS SHAREHOLDER APPROVAL AND THE REFINANCING OF
CERTAIN RAMCO PROPERTY DEBT ON SPECIFIED TERMS AND THE RECEIPT OF CERTAIN RAMCO
GROUP CONSENTS.
