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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
Ramco-Gershenson Properties Trust
(Name of Issuer)
Common Shares of
Beneficial Interest,
par value $.01 per share
(Title of Class of Securities)
------------
75145220
(CUSIP Number)
Bruce Bromberg
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
(212) 761-4000
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
November 13, 1998
(Date of Event which Requires Filing of
this Statement)
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If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this statement because of Rule 13d-1(e), 13d-1
(f) or 13d-1(g), check the following box: [x]
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SCHEDULE 13D
CUSIP No. 75145220 Page 2 of 10 Pages
- ----------------------- ------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Morgan Stanley Dean Witter & Co.
IRS #39-314-5972
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
76,746
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH 1,645,039
REPORTING PERSON WITH
9 SOLE DISPOSITIVE POWER
76,746
10 SHARED DISPOSITIVE POWER
1,645,039
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,721,785
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.5
14 TYPE OF REPORTING PERSON*
IA, CO, HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SEC 1746 (9-88) 2 of 7
SCHEDULE 13D
CUSIP No. 75145220 Page 3 of 10 Pages
- ----------------------- ------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Morgan Stanley Asset Management Inc.
IRS # 13-304-0307
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH 1,645,039
REPORTING PERSON WITH
9 SOLE DISPOSITIVE POWER
10 SHARED DISPOSITIVE POWER
1,645,039
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,645,039
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.8
14 TYPE OF REPORTING PERSON*
IA, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SEC 1746 (9-88) 2 of 7
SCHEDULE 13D
CUSIP No. 75145220 Page 5 of 10 Pages
- -------------------- ------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Morgan Stanley Real Estate Special Situations Fund II, L.P.
IRS # 13-3962643
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH 461,760
REPORTING PERSON WITH
9 SOLE DISPOSITIVE POWER
10 SHARED DISPOSITIVE POWER
461,760
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
461,760
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.1
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SEC 1746 (9-88) 2 of 7
Item 1. Security and Issuer.
The class of equity securities to which this statement
relates is the common shares of beneficial interest, $.01 par value per
share (the "Common Shares"), of Ramco-Gershenson Properties Trust, a
Maryland real estate investment trust (together with its predecessors, the
"Issuer"). The principal executive offices of the Issuer are located at
27,600 Northwestern Highway, Southfield, Michigan.
Item 2. Identity and Background.
This statement is being filed by (i) Morgan Stanley Dean
Witter & Co., a Delaware corporation ("MSDW") and an investment adviser
registered with the Securities and Exchange Commission with offices at 1585
Broadway, New York, New York 10036, (ii) Morgan Stanley Asset Management
Inc., a Delaware corporation ("MSAM") and an investment adviser registered
with the Securities and Exchange Commission with offices at 1221 Avenue of
the Americas, New York, New York 10020, and (iii) The Morgan Stanley Real
Estate Special Situations Fund II, L.P. ("MSRESSF II"), a Delaware limited
partnership with its office at 1221 Avenue of the Americas, New York, New
York 10020, the general partner of which is MS Real Estate Special
Situations GP Inc., a wholly-owned subsidiary of MSDW.
During the last five years, none of MSDW, MSAM and MSRESSF II
have been (i) convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors), or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The funds used to acquire the Series A Convertible Preferred
Shares of Beneficial Interest (the "Preferred Shares") were contributed by
the clients referred to in Item 5 below and MS Real Estate Special
Situations Inc. ("MSRESSI"), the wholly-owned subsidiary through which
MSDW owns Preferred Shares (collectively, the "Investors"). The funds used
to acquire the Common Shares were obtained from the working capital of
certain registered investment companies and other persons (the "Core
Accounts") for which MSAM serves as investment adviser. The amounts of the
consideration for the acquisitions are set forth in Item 5. MSAM has not
contributed its own assets in connection with the purchases described
herein. MSAM is an investment adviser to MSRESSF II and the other clients
referred to in Item 5 below.
Item 4. Purpose of Transaction.
MSAN acquired Preferred Shares on behalf of the Investors for
investment purposes. MSAM, on behalf of the Investors, intends to continue to
consider various alternative courses of action and will in the future take
such actions with respect to the equity ownership in the Issuer as MSAM
deems appropriate in light of the circumstances existing from time to time.
Such actions may include making recommendations to management concerning
various business strategies, acquisitions, dividend policies and other
matters, pursuing a transaction or transactions involving a change in
control of the Issuer or such other actions as it may deem appropriate.
Such actions may involve the conversion of the Preferred Shares into Common
Shares or the sale of all or a portion of the Preferred Shares or such
Common Shares beneficially owned by the Investors in the open market or in
privately negotiated transactions to one or more purchasers.
MSAM acquired Common Shares on behalf of the Core
Accounts for investment purposes.
Item 5. Interest in Securities of the Issuer.
(a)-(b) Incorporated by reference to items (7) - (11) and
(13) of the cover pages. Information regarding the percentage of Common
Shares is based on 7,123,638 Common Shares outstanding as of
September 30, 1998, which number was reported by the Issuer on its Form 10-Q
for the period ending September 30, 1998.
(c) Pursuant to the Preferred Units and Stock Purchase
Agreement, dated September 30, 1997 (the "Purchase Agreement"), a copy of
which is incorporated by reference herein as Exhibit 1, Stichting
Bedrijspensioenfonds Voor de Metaalnijverheid, Stichting Pensionfunds ABP,
MS Special Funds Pte Ltd*, The Morgan Stanley Real Estate Special
Situations Fund I, L.P., Morgan Stanley Real Estate Special Situations
Investors, L.P.*, MSRESSF II (the "Clients") and MSRESSI acquired on
December 31, 1997, September 9, 1998 and November 13, 1998 at a purchase
price of $25 per share, the number of Preferred Shares set forth below:
Buyer Number of Preferred Shares Aggregate Purchase Price
- ------- -------------------------- ------------------------
MSRESSI 12/31/97 17,907 $ 447,675
9/9/98 15,349 383,725
11/13/98 20,466 511,650
MSRESSF II 12/31/97** 107,744 2,693,600
9/9/98 92,352 2,308,800
11/13/98 123,136 3,078,400
Other Clients 12/31/97 274,349 6,858,725
9/9/98 235,156 5,878,900
11/13/98 313,541 7,838,525
* MSRESSI assigned certain of its rights under the Purchase Agreement to
(i) Morgan Stanley Real Estate Special Situations Investors, L.P. as of
September 30, 1997 and (ii) MS Special Funds Pte Ltd. on March 4, 1998.
** MSRESSF II acquired these Preferred Shares pursuant to the Buyer/Colorado
Agreement, dated September 30, 1997, a copy of which is incorporated by
reference herein as Exhibit 2.
Pursuant to the Articles Supplementary (the "Articles
Supplementary") Classifying 1,400,000 Preferred Shares of Beneficial
Interest as Series A Convertible Preferred Shares of Beneficial Interest, a
copy of which is incorporated by reference herein as Exhibit 3, each
Preferred Share is convertible into 1.4286 Common Shares.
Pursuant to separate investment management agreements
between MSAM and each of the Clients, MSAM has been granted voting and
dispositive power with respect to the Preferred Shares, and any securities
into which the Preferred Shares may be converted, held by each Client.
MSDW, through MSRESSI, its wholly-owned subsidiary,
exercises sole voting and dispositive power with respect to the Preferred
Shares, and any securities into which the Preferred Shares may be
converted, acquired by MSRESSI. MSDW, through MSAM, its wholly-owned
subsidiary, exercises voting and dispositive power with respect to the
Preferred Shares, and any securities into which they may be converted,
acquired by MSRESSF II and the other Clients.
MSAM acquired on behalf of the Core Accounts (i) 7,200 Common
Shares at an average price of $17.44 on March 26, 1997 and (ii) 300 Common
Shares at an average price of $18.94 on July 8, 1998.
Except as disclosed herein, none of MSDW, MSRESSI, MSAM,
MSRESSF II nor the Core Accounts has effected any transactions in Preferred
Shares or Common Shares during the preceding 60 days.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
Pursuant to the Articles Supplementary, holders of Preferred
Shares are entitled to vote on an "as converted" basis with holders of the
Common Shares, as though part of the same class of Common Shares. In
addition, the approval of holders of 51% of the outstanding Preferred
Shares is required for certain change of control transactions, asset sales,
acquisitions, changes in business plan and stock issuances.
Pursuant to a Registration Rights Agreement, dated September
30, 1997 (the "Registration Rights Agreement"), a copy of which is
incorporated by reference herein as Exhibit 4, MSAM, on behalf of the
Investors, may require, (i) in the case of Common Shares and certain other
securities of the Issuer, not before the earlier of the first anniversary
of a widely distributed offering of Common Shares satisfying certain
conditions (a "Qualifying Offering") and September 30, 1999 and (ii) in the
case of Preferred Shares, not before September 30, 1999, the Issuer to
offer to include such securities held by the Investors in a shelf
registration statement and, subject to certain conditions, to effect
registration of such securities under the Securities Act of 1933. MSAM, on
behalf of the Investors may also demand, (i) in the case of Common Shares
and certain other securities of the Issuer, not before the earlier of the
first anniversary of a Qualifying Offering and September 30, 1999 and (ii)
in the case of Preferred Shares, not before September 30, 1999, that the
Issuer file a non-shelf registration statement with respect to securities
of the Issuer with aggregate expected offering price of greater than
$5,000,000 or more. Prior to September 30, 2007, subject to certain
conditions, Common Shares held by the Investors may be included in a
registration of Common Shares when the Issuer proposes to register Common
Shares or the shares of other holders of Common Shares.
Also pursuant to the Registration Rights Agreement, the
Investors, until the earlier of the first date upon which the Investors own
less than 15% of the Common Shares, calculated on a fully diluted basis,
and September 30, 2007, shall have the right not before the earlier of the
first anniversary of a Qualifying Offering and September 30, 1999 to
include certain Common Shares held by the Investors in certain sales of
Common Shares by the Issuer in connection with certain significant
corporate transactions.
Except for the investment management agreements entered into
by each of MSRESSF II and the other Clients, each of which grants voting
and dispositive power over the Preferred Shares, and any securities into
which they may be converted, to MSAM, there exist no contracts
arrangements, understandings or relations (legal or otherwise) between the
Investors and other persons with respect to finder's fees, joint ventures,
loan or option arrangements, puts or calls, guarantees of profits, division
of profits or loss, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1: Preferred Units and Stock Purchase Agreement by
and among Ramco-Gershenson Properties, L.P., the Issuer, the advancing
parties named therein and Special Situations RG REIT, Inc. dated as of
September 30, 1997 (incorporated by reference to Exhibit 10.1 of the
Issuer's filing of Form 10-Q for the period ending September 30, 1997).
Exhibit 2: Buyer/Colorado Sharing Agreement between Special
Situations RG REIT, Inc. and MSRESSF II dated as of September 30, 1997.
Exhibit 3: Articles Supplementary Classifying 1,400,000
Preferred Shares of Beneficial Interest as Series A Convertible Preferred
Shares of Beneficial Interest (incorporated by reference to Annex A of the
Issuer's Schedule 14A filed on October 21, 1997).
Exhibit 4: Registration Rights Agreement dated as of
September 30, 1997 by and among the Issuer, Special Situations RG REIT,
Inc., and the advancing parties named therein dated as of September 30,
1997 (incorporated by reference to Exhibit 10.3 of the Issuer's filing on
Form 10-Q for the period ending September 30, 1997).
Exhibit 5: Joint Filing Agreement, dated November 23, 1998
among MSDW, MSAM and MSRESSF II.
Exhibit 6: Secretary's Certificate authorizing Bruce Bromberg
to sign on behalf of MSDW.
SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: November 23, 1998
By: /s/ Bruce Bromberg
-------------------------------------
Name: Bruce Bromberg
Authorized Signatory
EXHIBIT INDEX
Exhibit No. Description
----------- -------------------------------------------------------
1 Preferred Units and Stock Purchase Agreement by and among
Ramco-Gershenson Properties, L.P., the Issuer, the
advancing parties named therein and Special Situations RG
REIT, Inc. dated as of September 30, 1997 (incorporated
by reference to Exhibit 10.1 of the Issuer's filing of
Form 10-Q for the period ending September 30, 1997).
2 Buyer/Colorado Sharing Agreement between Special Situations
RG REIT, Inc. and MSRESSF II L.P. dated as of September
30, 1997).
3 Articles Supplementary Classifying 1,400,000 Preferred
Shares of Beneficial Interest as Series A Convertible
Preferred Shares of Beneficial Interest (incorporated by
reference to Annex A of the Issuer's Schedule 14A filed
on October 21, 1997).
4 Registration Rights Agreement dated as of September 30, 1997
by and among the Issuer, Special Situations RG REIT,
Inc., and the advancing parties named therein dated as of
September 30, 1997 (incorporated by reference to Exhibit
10.3 of the Issuer's filing on Form 10-Q for the period
ending September 30, 1997).
5 Joint Filing Agreement, dated November 23, 1998 among
MSDW, MSAM and MSRESSF II.
6 Secretary's Certificate authorizing Bruce Bromberg to
sign on behalf of MSDW.
BUYER/COLORADO SHARING AGREEMENT
between
SPECIAL SITUATIONS RG REIT, INC., "Buyer"
and
THE MORGAN STANLEY REAL ESTATE
SPECIAL SITUATIONS FUND II, L.P., "Colorado"
------------------------------------
regarding a certain Preferred Units and Stock Purchase
Agreement
by and among SPECIAL SITUATIONS RG REIT, INC.,
the ADVANCING PARTY (as defined therein),
RAMCO-GERSHENSON PROPERTIES TRUST and
RAMCO-GERSHENSON PROPERTIES, L.P.
BUYER/COLORADO SHARING AGREEMENT
BUYER/COLORADO SHARING AGREEMENT, dated as of September 30, by and
between SPECIAL SITUATIONS RG REIT, INC. ("Buyer"), and THE MORGAN STANLEY REAL
ESTATE SPECIAL SITUATIONS FUND II, L.P. ("Colorado").
RECITALS:
WHEREAS, Buyer is a party to a Preferred Units and Stock Purchase
Agreement dated as of even date herewith (the "Stock Purchase Agreement"), with
the Advancing Party, as defined therein, Ramco-Gershenson Properties Trust (the
"Company") and Ramco-Gershenson Properties, L.P. (the "Operating Partnership"),
relating, inter alia, to the purchase of up to an aggregate of 1,200,000 shares
of a newly authorized series of convertible preferred stock of the Company (the
"Purchased Shares"), and, to the extent that the Company is unable to issue
such Company Preferred Stock, up to an aggregate of 1,200,000 preferred units
of the Operating Partnership (the "Purchased Units"), in each case at a price
of $25.00 per share of Purchased Share or per Purchased Unit, as the case may
be; and
WHEREAS, Colorado desires to purchase Purchased Units subject to the
terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and covenants
contained herein, Colorado and Buyer hereby each agree as follows:
1. Definitions. Unless separately defined herein, all capitalized
terms used herein which are not otherwise defined herein shall have the
meanings ascribed to such terms in the Stock Purchase Agreement.
2. Purchase of Participation. At any Units Purchase, Buyer agrees to
sell and Colorado agrees to purchase, on the terms and conditions in this
Agreement, an economic contract right as established herein which is to reflect
the distributable cash, refinancing proceeds and sales proceeds, if any,
measured and determined by an undivided participation interest (the "Investment
Contract Interest") in 14.417% (the "Colorado Percentage") of the Purchased
Units. The consideration payable hereunder by Colorado shall be equal to one
hundred percent (100%) of the purchase price paid by Buyer for the Purchased
Units ($4,325,100).
3. Termination Date. Colorado's Investment Contract Interest in the
Purchased Units shall be irrevocable and unconditional, subject to the terms
and conditions of the Stock Purchase Agreement and the Buyer Reorganization
Agreement.
4. Dividends. The Buyer shall pay to Colorado the Colorado
Percentage of all dividends, distributions and other payments hereafter
received by Buyer in respect of the Purchased Units from the Operating
Partnership after deducting therefrom expenses and any such reasonable reserves
as Buyer may determine promptly after receipt thereof.
5. Colorado's Purchase Obligations. Subject to the terms and
conditions of that certain letter dated March 31, 1997 between Colorado and
Morgan Stanley Asset Management Inc. (the "IMA Letter") and that Amended and
Restated Agreement of Limited Partnership of Colorado dated as of March 31,
1997 (the "Colorado Partnership Agreement"), Buyer will give Colorado notice of
Colorado's Investment Contract Interest of the purchase price for any Purchased
Units which the Company requires the Buyer to purchase at a Closing, pursuant
Section 2.4 of the Stock Purchase Agreement (followed by telex or facsimile
confirmation thereof). Colorado will remit to Buyer, on the date specified
therefor in such notice, the dollar amount of Colorado's Investment Contract
Interest in any such purchase as specified by Buyer in the foregoing notice.
6. Sharing Provisions. Subject to the IMA Letter and the Partnership
Agreement to the extent inconsistent herewith, all collections received in
respect of the Purchased Units, or any portion thereof, by the Buyer or
Colorado shall be divided between Buyer and Colorado on the basis of Colorado
Percentage. All amounts received by Colorado in respect of the Purchased Units
other than pursuant to this Agreement shall be remitted to Buyer less Colorado
Percentage therein. If any party hereto shall, at any time, receive a dividend,
distribution or other payment on account of all or part of its pro rata share
in the Purchased Units, in a greater proportion than the payments made on
account of the interest of the other party hereto, such party receiving such
greater proportionate interest shall promptly make payment in cash, to the
other party hereto, such amount in excess of its pro rata share. If any such
payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
7. No Assignment or Subparticipation. Subject to the IMA Letter and
the Partnership Agreement to the extent inconsistent herewith, the Investment
Contract Interest in the Purchased Units, or any portion thereof, may not be
further participated or transferred in whole or in part without the prior
written consent of Buyer, which consent shall not be unreasonably withheld, and
Colorado represents that it is purchasing the Investment Contract Interest for
its own account and not with a view to further distribution thereof. Colorado
acknowledges that Buyer may sell participations or other interests in the
Purchased Units to others.
8. Colorado's Acknowledgments. Colorado hereby acknowledges receipt
of copies of the Stock Purchase Agreement and related documents and
acknowledges its understanding and acceptance of the terms thereof. Unless
prohibited from doing so under the Stock Purchase Agreement, or by law, Buyer
shall provide Colorado, promptly after receipt thereof, copies of all
information regarding the operations, business, affairs and financial condition
of and the Operating Partnership including, without limitation, each report or
statement of the Operating Partnership, and all other notices delivered
pursuant to the Stock Purchase Agreement.
9. Control by Buyer.
(a) Subject to the IMA Letter and the Partnership Agreement to the
extent inconsistent herewith, Buyer shall have the sole right to collect all
dividends, distributions and/or other amounts due in respect of the Purchased
Units and the Stock Purchase Agreement pursuant to the terms and conditions
thereof, together with all proceeds arising from any remedial action taken with
respect to the Purchased Units and the Stock Purchase Agreement, as well as
exercise all rights of Colorado as a holder of Purchased Units, including,
without limitation, the giving of any notices as to the redemption thereof.
(b) Subject to the IMA Letter and the Partnership Agreement to the
extent inconsistent herewith, if, at any time, the Operating Partnership
requests the consent of Buyer, Buyer may consent on behalf of Buyer and
Colorado whether or not Buyer has received the prior approval of Colorado.
10. Exchange Upon Buyer Reorganization. Upon the occurrence of the
Buyer Reorganization, the Investment Contract Interest shall, without any
further action on the part of Colorado or Buyer, be deemed to be contributed to
the Maryland Trust by Colorado and in return Colorado will receive from the
Maryland Trust a number of shares of Company Preferred Stock equal to the
number of Purchased Units of the Operating Partnership in which Colorado has a
full participation pursuant to this Agreement.
11. Notices. Subject to the IMA Letter and the Partnership Agreement
to the extent inconsistent herewith, and unless otherwise directed by either
party hereto to whom any notice is to be given, all notices to Buyer and to
Colorado shall be transmitted to the addresses set forth on the signature page
hereof. Buyer will provide Colorado, promptly after the execution thereof, with
any material amendment or modification of the Stock Purchase Agreement or any
(a) notice from the Operating Partnership of the occurrence of any event which
constitutes a breach under the Stock Purchase Agreement, or (b) notice from the
Operating Partnership of any action, suit or proceeding known to the Operating
Partnership at law or in equity or by or before any governmental
instrumentality or other agency which, if adversely determined, would
materially impair the right of the Operating Partnership to carry out its
obligations under the Stock Purchase Agreement or any of the instruments
delivered thereunder or would materially affect its assets or financial
condition. Failure of Buyer to provide any such notice referred to in the
foregoing sentence shall not result in any liability to Buyer unless such
failure occurs in the time between a request for consent hereunder by Buyer and
the time such a request is granted or denied by Colorado.
12. Waiver. Subject to the IMA Letter and the Partnership Agreement
to the extent inconsistent herewith, Colorado will not have, and will not
assert or seek to exercise, any right of legal redress against or the Operating
Partnership or any other person having any obligation with respect to the Stock
Purchase Agreement, any other related documents, or Colorado's Investment
Contract Interest. Subject to the limitations in the Agreement, Colorado agrees
that Buyer may take legal action to enforce or protect Colorado's and/or
Buyer's interest with respect to the Stock Purchase Agreement, the transactions
contemplated thereby, or pursuant to any agreement contemplated therein, and
any other related documents. Nothing in this Section 13 shall waive any right
Colorado may have under this Agreement.
13. Representations. Colorado hereby represents and warrants to Buyer
that (i) Colorado is a limited partnership organized under the laws of
Delaware; (ii) Colorado will perform its obligations hereunder for its own
account in the ordinary course of business; (iii) the making and performance by
Colorado of its obligations under this Agreement have been duly authorized by
all necessary corporate action on the part of Colorado; and (iv) the obligation
of Colorado under this Agreement is the legal, valid and binding obligation of
Colorado, enforceable against Colorado in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether enforceability is sought in a
proceeding in equity or at law).
14. Colorado Tax Representations. Colorado represents that it is
entitled to receive any payments to be made to it by Buyer hereunder without
the withholding of any tax and will furnish to Buyer such certifications,
statements and other documents as are necessary or appropriate to evidence
Colorado's exemption from the withholding of any tax imposed by any
jurisdiction or to enable Buyer to comply with any applicable laws or
regulations relating thereto.
15. Confidentiality; Limited Disclosure. Except as may be required by
law or by any competent regulatory or administrative body or any representative
thereof, Colorado will not without the prior written consent of Buyer, other
than to Colorado's legal counsel, accountants and subparticipant, each such
subparticipant as approved by Buyer, disclose (i) any terms of this Agreement
to the Operating Partnership or any other person or entity or (ii) the
existence of this Agreement to any person or entity other than the Operating
Partnership.
16. Entire Agreement. Subject to the IMA Letter and the Partnership
Agreement, this Agreement sets forth the entire agreement between Colorado and
Buyer and may not be supplemented or altered except in a written agreement
signed by Buyer and Colorado. In the absence of manifest error, all
determinations made by Buyer in good faith hereunder or relating to the Stock
Purchase Agreement shall be conclusive and binding on Colorado. If any
provision hereof would be invalid under applicable law, such provision shall be
deemed to be modified to the extent necessary to render it valid while most
nearly preserving its original intent; no provision hereof shall be affected by
another provision's being held invalid.
17. Governing Law; Submission to Jurisdiction. This Agreement shall
be governed by, and construed in accordance with, the laws of New York. Any
legal action or proceeding arising out of or relating to this Agreement may be
brought in the courts of New York, the courts of the United States located in
the City of New York and Colorado hereby irrevocably submits to the
jurisdiction of each of such courts in any action or proceeding. Colorado
hereby irrevocably consents to service of process in any said action or
proceeding in any of such courts by the mailing or copies thereof, postage
prepaid, to Colorado at Colorado's address set forth under Colorado's name on
the signature page hereto, such service to become effective ten (10) days after
such mailing. Colorado hereby waives, in relation to any such action or
proceeding, any sovereign immunity or other immunity to suit or to execution or
attachment (whether before or after judgment) to which Colorado or any of
Colorado's property may be or become entitled.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which is an original document, but all of which, taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Agreement as of the date and year set opposite the signatures herein.
SPECIAL SITUATIONS RG REIT, INC.
By: /s/ Ted Bigman
-------------------------------------------
Name: Ted Bigman
Title: Vice President
Address: c/o Morgan Stanley Asset Management Inc.
1221 Avenue of the Americas
New York, New York 10020
THE MORGAN STANLEY REAL ESTATE
SPECIAL SITUATIONS FUND II, L.P.
By: /s/ Ted Bigman
-------------------------------------------
Name: Ted Bigman
Title: Vice President
Address: c/o Morgan Stanley Asset Management Inc.
1221 Avenue of the Americas
Date: September 30, 1997 New York, New York 10020
EXHIBIT 5 TO SCHEDULE 13D
NOVEMBER 23, 1998
MORGAN STANLEY DEAN WITTER & CO., MORGAN STANLEY ASSET
MANAGEMENT INC., and THE MORGAN STANLEY REAL ESTATE SPECIAL SITUATIONS FUND II
L.P. hereby agree that, unless differentiated, this Schedule 13D is
filed on behalf of each of the parties.
MORGAN STANLEY ASSET MANAGEMENT INC.
BY: /s/ Don Ryan
-------------------------
Name: Don Ryan
Title: Vice President
MORGAN STANLEY DEAN WITTER & CO.
BY: /s/ Don Ryan
-------------------------
Name: Don Ryan
Authorized Signatory
THE MORGAN STANLEY REAL ESTATE SPECIAL SITUATIONS FUND II L.P.
By Morgan Stanley Real Estate Special Situations GP
BY: /s/ Ted Bigman
-------------------------
Name: Ted Bigman
Title: Principal
EXHIBIT 6
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SECRETARY'S CERTIFICATE
I, Charlene R. Herzer, a duly elected and acting Assistant
Secretary of Morgan Stanley Dean Witter, Discover & Co., a corporation
organized and existing under the laws of the State of Delaware (the
"Corporation"), certify that as approved by a Unanimous Consent of
Directors in Lieu of a Meeting dated as of May 31, 1997, the following
persons are each authorized to sign reports to be filed under Sections 13
and 16 of the Securities Exchange Act of 1934 on behalf of the Corporation,
and such authorizations are in full force and effect as of this date:
Stuart J.M. Breslow
Robert G. Koppenol
Bruce Bromberg
Robin Sherak
IN WITNESS WHEREOF, I have hereunto set my name and affixed the seal of
the Corporation as of the 3rd day of June, 1997.
/s/ Charlene R. Herzer
------------------------
Charlene R. Herzer
Assistant Secretaty
