<PAGE> 1
- --------------------------------------------------------------------------------
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
------------------------
FORM 10-Q
<TABLE>
<S> <C>
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)OF THE
SECURITIES ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES ACT OF 1934
For the transition period from to
Commission file number 1-10093
</TABLE>
RAMCO-GERSHENSON PROPERTIES TRUST
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MARYLAND 13-6908486
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
27600 NORTHWESTERN HIGHWAY, SUITE 200, 48034
SOUTHFIELD, MICHIGAN (Zip code)
(Address of principal executive offices)
</TABLE>
248-350-9900
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No __
Number of common shares of beneficial interest ($.01 par value) of the
Registrant outstanding as of October 31, 1999: 7,217,993
- --------------------------------------------------------------------------------
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<PAGE> 2
INDEX
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C> <C>
PART I. FINANCIAL INFORMATION
ITEM 1. Financial Statements
Consolidated Balance Sheets -- September 30, 1999
(unaudited) and December 31, 1998......................... 3
Consolidated Statements of Income (unaudited) -- Three
Months and Nine Months Ended September 30, 1999 and
1998...................................................... 4
Consolidated Statement of Shareholders' Equity
(unaudited) -- Nine Months Ended September 30, 1999....... 5
Consolidated Statements of Cash Flows (unaudited) -- Nine
Months Ended September 30, 1999 and 1998.................. 6
Notes to Consolidated Financial Statements (unaudited)...... 7
ITEM 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations................................. 10
PART II. OTHER INFORMATION
ITEM 4. Exhibits and Reports on Form 8-K............................ 18
SIGNATURES........................................................... 19
</TABLE>
2
<PAGE> 3
PART I -- FINANCIAL INFORMATION
ITEM 1 -- FINANCIAL STATEMENTS
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1999 1998
------------- ------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Investment in real estate -- net (Note 2)................... $507,302 $509,844
Cash and cash equivalents................................... 2,812 4,550
Accounts receivable -- net.................................. 12,367 9,864
Equity investments in and advances to unconsolidated
entities (Note 3)......................................... 12,231 5,896
Other assets -- net (Note 4)................................ 11,486 14,250
-------- --------
Total Assets........................................... $546,198 $544,404
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Mortgages and notes payable (Note 5)........................ $332,752 $328,248
Distributions payable....................................... 5,130 5,244
Accounts payable and accrued expenses....................... 16,669 15,235
-------- --------
Total Liabilities...................................... 354,551 348,727
Minority Interest........................................... 48,137 48,535
Commitments and Contingencies (Note 7).................... -- --
SHAREHOLDERS' EQUITY
Preferred Shares, par value $.01, 10,000 shares authorized;
1,400 Series A convertible shares issued and outstanding,
liquidation value of $35,000.............................. 33,829 33,829
Common Shares of Beneficial Interest, par value $.01, 30,000
shares authorized; 7,218 issued and outstanding........... 72 72
Additional paid-in capital.................................. 151,973 151,973
Cumulative distributions in excess of net income............ (42,364) (38,732)
-------- --------
Total Shareholders' Equity............................. 143,510 147,142
-------- --------
Total Liabilities and Shareholders' Equity........ $546,198 $544,404
======== ========
</TABLE>
See notes to consolidated financial statements.
3
<PAGE> 4
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE THREE FOR THE NINE
MONTHS ENDED MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------ ------------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
REVENUES
Minimum rents....................................... $14,790 $13,693 $44,813 $40,134
Percentage rents.................................... 510 46 1,669 798
Recoveries from tenants............................. 5,670 5,058 16,599 14,321
Interest and other income........................... 124 166 546 415
------- ------- ------- -------
Total Revenues................................. 21,094 18,963 63,627 55,668
------- ------- ------- -------
EXPENSES
Real estate taxes................................... 2,019 1,761 6,005 5,208
Recoverable operating expenses...................... 3,768 3,246 10,963 9,213
Depreciation and amortization....................... 3,356 3,059 10,008 8,935
Other operating..................................... 188 183 739 598
General and administrative.......................... 1,682 1,400 5,192 4,349
Interest expense.................................... 6,276 6,444 19,215 18,688
------- ------- ------- -------
Total Expenses................................... 17,289 16,093 52,122 46,991
------- ------- ------- -------
Operating income...................................... 3,805 2,870 11,505 8,677
Loss from unconsolidated entities..................... 21 65 171 228
------- ------- ------- -------
Income before minority interest....................... 3,784 2,805 11,334 8,449
Minority interest..................................... 1,106 810 3,322 2,372
------- ------- ------- -------
Net income............................................ 2,678 1,995 8,012 6,077
Preferred dividends................................... (859) (345) (2,548) (908)
------- ------- ------- -------
Net income available to common shareholders........... $ 1,819 $ 1,650 $ 5,464 $ 5,169
======= ======= ======= =======
Basic earnings per share.............................. $ 0.25 $ 0.23 $ 0.76 $ 0.73
======= ======= ======= =======
Diluted earnings per share............................ $ 0.25 $ 0.23 $ 0.76 $ 0.72
======= ======= ======= =======
Weighted average shares outstanding:
Basic............................................... 7,218 7,124 7,218 7,123
======= ======= ======= =======
Diluted............................................. 7,218 7,144 7,218 7,162
======= ======= ======= =======
</TABLE>
See notes to consolidated financial statements.
4
<PAGE> 5
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
COMMON ADDITIONAL CUMULATIVE TOTAL
PREFERRED STOCK PAID-IN EARNINGS/ SHAREHOLDERS'
STOCK PAR VALUE CAPITAL DISTRIBUTION EQUITY
--------- --------- ---------- ------------ -------------
<S> <C> <C> <C> <C> <C>
BALANCE, JANUARY 1, 1999................. 33,829 $72 $151,973 $(38,732) $147,142
Cash distributions declared.............. (9,096) (9,096)
Preferred Shares dividends declared...... (2,548) (2,548)
Net income............................... 8,012 8,012
------- --- -------- -------- --------
BALANCE, SEPTEMBER 30, 1999.............. $33,829 $72 $151,973 $(42,364) $143,510
======= === ======== ======== ========
</TABLE>
See notes to consolidated financial statements.
5
<PAGE> 6
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE NINE MONTHS
ENDED SEPTEMBER 30
--------------------
1999 1998
---- ----
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income................................................ $ 8,012 $ 6,077
Adjustments to reconcile net income to net cash flows
provided by operating activities:
Depreciation and amortization.......................... 10,008 8,935
Amortization of deferred financing costs............... 567 804
Loss from unconsolidated entities...................... 171 228
Minority interest...................................... 3,322 2,372
Changes in assets and liabilities that provided (used)
cash:
Accounts receivable.................................. (2,503) (1,022)
Other assets......................................... (3,074) (5,187)
Accounts payable and accrued expenses................ 1,434 1,171
-------- --------
Cash Flows Provided by Operating Activities................. 17,937 13,378
-------- --------
CASH FLOWS USED IN INVESTING ACTIVITIES
Proceeds from real estate sales........................... 27,851 --
Real estate acquired...................................... (34,443) (24,838)
Investment in RPT/INVEST L.L.C............................ (1,403) --
Advances (to) from unconsolidated entities................ (76) 428
-------- --------
Cash Flows Used in Investing Activities..................... (8,071) (24,410)
-------- --------
CASH FLOWS PROVIDED BY FINANCING ACTIVITIES
Cash distributions to shareholders........................ (9,096) (9,322)
Cash distributions to operating partnership unit
holders................................................ (3,987) (3,603)
Cash dividends paid on Preferred Shares................... (2,395) (563)
Repayment of Credit Facility.............................. (29,000) (3,700)
Principal repayments on mortgages payable................. (2,297) (3,992)
Payment of deferred financing costs....................... (630) (370)
Borrowings on Credit Facility............................. 17,000 22,600
Borrowings on construction loans.......................... 18,801 --
Net proceeds from issuance of Preferred Shares............ -- 9,380
Net advances from related entities........................ -- 52
Refund of deferred financing costs........................ -- 250
Net proceeds from exercise of stock options............... -- 10
-------- --------
Cash Flows (Used in) Provided by Financing Activities....... (11,604) 10,742
-------- --------
Net Decrease in Cash and Cash Equivalents................... (1,738) (290)
Cash and Cash Equivalents, Beginning of Period.............. 4,550 5,033
-------- --------
Cash and Cash Equivalents, End of Period.................... $ 2,812 $ 4,743
======== ========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid for interest during the period.................. $ 19,826 $ 17,591
======== ========
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND FINANCING
ACTIVITIES:
Acquisition of Aquia Towne Center:
Debt assumed........................................... -- $ 15,170
Value of OP units issued............................... -- 5,273
</TABLE>
See notes to consolidated financial statements.
6
<PAGE> 7
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION -- The accompanying interim financial statements and
related notes of the Company are unaudited; however, they have been prepared in
accordance with generally accepted accounting principles for interim financial
reporting, the instructions to Form 10-Q and the rules and regulations of the
Securities and Exchange Commission. Accordingly, certain information and
footnote disclosures normally included in financial statements prepared under
generally accepted accounting principles have been condensed or omitted pursuant
to such rules. The unaudited interim financial statements should be read in
conjunction with the audited financial statements and related notes included in
the Company's Annual Report on Form 10-K for the year ended December 31, 1998.
In the opinion of management, all adjustments (consisting only of normal
recurring adjustments) necessary for a fair presentation of the financial
statements for the interim periods have been made. The results for interim
periods are not necessarily indicative of the results for a full year.
IMPACT OF RECENT ACCOUNTING PRONOUNCEMENTS -- In June 1998, the Financial
Accounting Standards Board (FASB) issued Statement of Financial Standards (SFAS)
No. 133, "Accounting for Derivative Instruments and Hedging Activities", which
establishes accounting and reporting standards for derivative instruments and
hedging activities. It requires that an entity recognize all derivatives as
either assets or liabilities in the statement of financial position and measure
those instruments at fair value. Management has not yet evaluated the effects of
this change on its financial position or results of operations. The Company will
adopt SFAS No. 133 as required for its first quarterly filing of fiscal year
2001.
2. REAL ESTATE
Investment in real estate consists of the following (in thousands):
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999 DECEMBER 31, 1998
------------------ -----------------
(UNAUDITED)
<S> <C> <C>
Land...................................................... $ 76,758 $ 64,433
Buildings and Improvements................................ 449,416 464,216
Construction-in- progress................................. 14,283 7,331
-------- --------
540,457 535,980
Less: accumulated depreciation............................ (33,155) (26,136)
-------- --------
Investment in real estate -- net.......................... $507,302 $509,844
======== ========
</TABLE>
3. INVESTMENT IN UNCONSOLIDATED JOINT VENTURE
On August 30, 1999 the Company entered into a joint venture agreement with
an affiliate of Investcorp International, Inc. (Investcorp) to create
RPT/INVEST, L.L.C. The purpose of the joint venture is to acquire existing
shopping centers with purchase prices amounting up to $125 million located in
the Mid-West, Mid-Atlantic and northeast United States.
The Company sold two existing properties to joint venture entities for cash
of approximately $27.8 million, net of a $2.5 million equity contribution for
its 25% interest in the joint venture. The Company used the proceeds from the
sale to repay $25.0 million of variable rate debt on its revolving Credit
Facility. Investcorp contributed cash of approximately $7.6 million in exchange
for a 75% equity interest in the joint venture.
The joint venture is managed by a five member Investment Committee,
consisting of three members appointed by Investcorp and two members appointed by
the Company. Under terms of the joint venture agreement, the Company will
continue to manage the properties, including leasing and operating
responsibilities, for which the Company will receive management fees, leasing
commissions and asset management fees.
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<PAGE> 8
In addition, the Company is responsible for identifying and acquiring properties
and is expected to receive fees from the joint venture for such services.
The joint venture agreement includes a provision whereby the Company has
the right to purchase any property acquired by the joint venture during specific
time periods from the date of acquisition of the property.
4. OTHER ASSETS
Other assets are as follows (in thousands):
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999 DECEMBER 31, 1998
------------------ -----------------
(UNAUDITED)
<S> <C> <C>
Leasing costs and other..................................... $ 8,118 $ 6,893
Prepaid expenses and other.................................. 3,525 3,426
Deferred financing costs.................................... 3,690 3,059
Proposed development and acquisition costs.................. 486 3,911
------- -------
15,819 17,289
Less: accumulated amortization.............................. (4,333) (3,039)
------- -------
Other assets -- net......................................... $11,486 $14,250
======= =======
</TABLE>
5. MORTGAGES AND NOTES PAYABLE
Mortgages and notes payable consist of the following (in thousands):
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999 DECEMBER 31, 1998
------------------ -----------------
(UNAUDITED)
<S> <C> <C>
Fixed rate mortgages with interest rates ranging from 6.83%
to 8.50% due at various dates through 2008.................. $170,075 $172,371
Floating rate mortgages at 75% of the rate of long-term
Capital A rated utility bonds, due January 1, 2010, plus
supplemental interest to equal LIBOR plus 200 basis
points. The effective rate at September 30, 1999 was 6.93%
and at December 31, 1998 was 7.49%........................ 7,000 7,000
Construction loan financing, with an interest rate at LIBOR
plus 250 basis points due December 2002. The effective
rate at September 30, 1999, was 7.64%. Maximum borrowings
of $18,500................................................ 15,801 --
Construction loan financing, with an interest rate at LIBOR
plus 185 basis points due June 2002. The effective rate at
September 30, 1999, was 7.25% and at December 31, 1998 was
7.10%. Maximum borrowings of $14,000...................... 8,888 5,889
Unsecured term loan, due October 1, 2000. The effective rate
at September 30, 1999 was 9.19% and at December 31, 1998
was 9.06%................................................. 45,000 45,000
Credit Facility, due October 2000, maximum available
borrowings of $110,000. The effective rate at September
30, 1999 was 7.51%, and at December 31, 1998 was 7.35%.... 85,988 97,988
-------- --------
$332,752 $328,248
======== ========
</TABLE>
The mortgage notes and construction loans are secured by mortgages on
properties that have an approximate net book value of $332,194 as of September
30, 1999. The Credit Facility is secured by mortgages on various properties that
have an approximate net book value of $166,032 as of September 30, 1999.
At September 30, 1999, outstanding letters of credit issued under the
Credit Facility, not reflected in the accompanying consolidated balance sheet,
amounted to approximately $912.
8
<PAGE> 9
The following table presents scheduled principal payments on mortgages and
notes payable as of September 30, 1999:
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
- ------------
<S> <C>
1999 (October 1 -- December 31)............................ $ 815
2000........................................................ 139,486
2001........................................................ 4,128
2002........................................................ 27,087
2003........................................................ 3,653
Thereafter.................................................. 157,583
--------
Total.................................................. $332,752
========
</TABLE>
6. LEASES
The Company is engaged in the operation of shopping center and retail
properties and leases space to tenants and certain anchors pursuant to lease
agreements. The lease agreements provide for initial terms ranging from 3 to 30
years and, in some cases, for annual rentals which are subject to upward
adjustment based on operating expense levels and sales volume.
Approximate future minimum rentals under noncancelable operating leases in
effect at September 30, 1999, assuming no new or renegotiated leases nor option
extensions on lease agreements, are as follows (in thousands):
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
- ------------
<S> <C>
1999 (October 1 -- December 31)............................. $ 13,795
2000........................................................ 52,009
2001........................................................ 47,706
2002........................................................ 42,968
2003........................................................ 37,848
Thereafter.................................................. 257,393
--------
Total.................................................. $451,719
========
</TABLE>
7. COMMITMENTS AND CONTINGENCIES
Substantially all of the properties have been subjected to Phase I
environmental audits. Such audits have not revealed nor is management aware of
any environmental liability that management believes would have a material
adverse impact on the Company's financial position or results of operations.
Management is unaware of any instances in which it would incur significant
environmental costs if any or all properties were sold, disposed of or
abandoned.
During the third quarter of 1994, the Company held more than 25% of the
value of its gross assets in overnight Treasury Bill reverse repurchase
transactions which the United States Internal Revenue Service (the "IRS") may
view as non-qualifying assets for the purposes of satisfying an asset
qualification test applicable to REIT's, based on a Revenue Ruling published in
1977 (the "Asset Issue"). The Company requested that the IRS enter into a
closing agreement which would state that the Asset Issue would not impact the
Company's status as a REIT. The IRS deferred any action relating to the Asset
Issue pending the further examination of the Company's 1991-1995 tax returns
(the "Tax Audit"). Based on developments in the law, which occurred since 1977,
the Company's Tax Counsel, Battle Fowler LLP, rendered an opinion that the
Company's investment in Treasury Bill repurchase obligations would not adversely
affect its REIT status. However, such opinion is not binding upon the IRS.
9
<PAGE> 10
In connection with the spin-off of Atlantic, Atlantic assumed all liability
arising out of the Tax Audit and the Asset Issue, including liabilities for
interest and penalties and attorney fees relating thereto. In connection with
the assumption of such potential liabilities, Atlantic and the Company entered
into a tax agreement (Tax Agreement) which provides that the Company (under the
direction of its Continuing Trustees), and not Atlantic, would control, conduct
and effect the settlement of any tax claims against the Company relating to the
Tax Audit and the Asset Issue. Accordingly, Atlantic will not have any control
as to the timing of the resolution or disposition of any such claims. The
Company and Atlantic also received an opinion from Special Tax Counsel, Wolf,
Block, Schorr and Solis-Cohen LLP, that, to the extent there is a deficiency in
the Company's taxable income arising out of the IRS examination and provided the
Company timely makes a deficiency dividend (i.e., declares and pays a
distribution which is permitted to relate back to the year for which each
deficiency was determined to satisfy the requirement that the REIT distribute 95
percent of its taxable income), the classification of the Company as a REIT for
the taxable years under examination would not be affected. Under the Tax
Agreement referred to above, Atlantic agreed to reimburse the Company for the
amount of any deficiency dividend so made. If notwithstanding the
above-described opinions of legal counsel, the IRS successfully challenged the
status of the Company as a REIT, its status for the years prior to 1999 could be
adversely affected. If the Company lost its status as a REIT, the Company
believes that it would be able to re-elect REIT status for the taxable year
beginning January 1, 1999.
The IRS agent conducting the examination has issued his examination report
with respect to the tax issues raised in the Tax Audit, including the Asset
Issue (collectively, the "Tax Issues"). The report sets forth a number of
positions which the examining agent has taken with respect to the Company's
taxes for the years that are subject to the Tax Audit, which the Company
believes are not consistent with applicable law and regulations of the IRS.
Based upon the report, the Company could be liable for up to $42.2 million in
combined taxes, penalties and interest through November 15, 1999. The proposed
adjustments to taxable income could require the Company to pay a deficiency
dividend to its current shareholders resulting in combined taxes, penalties,
interest and deficiency dividend of approximately $43.5 million as of November
15, 1999.
As noted above, pursuant to a Tax Agreement between Atlantic and the
Company, Atlantic assumed all liability arising out of the Tax Audit and Tax
Issues, including the payment of the deficiency dividend. Based upon the amount
of Atlantic's net assets, as disclosed in its most recent quarterly report on
Form 10-Q for the period ended June 30, 1999, the Company does not believe that
the ultimate resolution of the Tax Issues will have a material adverse effect on
the financial position, results of operations or cash flows of the Company. The
issuance of the revenue agent's report constitutes only the first step in the
IRS administrative process for determining whether there is any deficiency in
the Company's tax liability for the years at issue and any adverse determination
by the examining agent is subject to administrative appeal within the IRS and,
thereafter, to judicial review. As noted above, the agent's report sets forth a
number of positions, which the Company and its legal counsel believe are not
consistent with applicable law and regulations of the IRS. Accordingly, the
Company has filed an administrative appeal challenging the findings contained in
the IRS agent's examination report.
ITEM 2 -- MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (Dollars in Thousands, except per Share and per
Unit amounts)
The following discussion and analysis of the financial condition and
results of operations should be read in conjunction with the Consolidated
Financial Statements of the Company, including the respective notes thereto
which are included in this Form 10-Q.
CAPITAL RESOURCES AND LIQUIDITY
The Company generated $17,937 in cash flows from operating activities for
the nine months ended September 30, 1999 and used $34,443 to fund development
projects for two shopping centers and to improve its properties. During the nine
months ended September 30, 1999, financing activities provided $18,801 from
borrowings on two construction loans; used $2,297 to pay regularly scheduled
principal repayments on mortgage obligations and $15,478 for cash distributions
to shareholders, holders of operating partnership units
10
<PAGE> 11
and dividends paid to preferred shareholders. The Company reduced borrowings on
the Credit Facility by $12,000, net of borrowings of $17,000.
In August 1999, the Company received $27,851 from the sale of two
properties from an affiliated joint venture and used the proceeds to reduce the
Credit Facility by $25,000 and for general corporate purposes.
The Company's mortgage and notes payable amounted to $332,752 at September
30, 1999, with a weighted average interest rate of 7.83 %. The debt consists of
nine loans secured by various properties, plus two construction loans, one
unsecured term loan and the Credit Facility, as defined below. Eight of the
mortgage loans amounting to $170,075 have maturities ranging from 2000 to 2008,
monthly payments which include regularly scheduled amortization, and have fixed
interest rates ranging between 6.83% to 8.50%. One of the mortgage loans,
evidenced by tax free bonds, amounting to $7,000 secured by Oakbrook Square
Shopping Center is non-amortizing, matures in 2010, and carries a floating
interest rate equal to 75% of the new issue long term Capital A rated utility
bonds, plus interest to the lender sufficient to cause the lender's overall
yield on its investment in the bonds to be equal to 200 basis points over its
applicable LIBOR rate (6.93% at September 30, 1999).
The Company has a $18.5 million construction loan to finance the
development of an 88 acre parcel of land located in Auburn Hills, Michigan. The
loan carries an interest rate of 250 basis points over LIBOR (7.64% at September
30, 1999) and matures in December 2000. At the Company's option, the loan can be
converted to a 2-year term loan. Approximately $15.8 million has been borrowed
as of September 30, 1999.
The Company has a $14 million construction loan to finance the White Lake
MarketPlace shopping center development. The loan carries an interest rate of
185 basis points over LIBOR (7.25% at September 30, 1999) and matures June 2000.
At the Company's option, the loan can then be converted to a 2-year term loan.
Approximately $8.9 million has been borrowed at September 30, 1999.
The Company has an unsecured term loan amounting to $45,000, maturing
October 2000. This term loan bears interest between 250 and 275 basis points
over LIBOR, depending on certain debt ratios (9.19% at September 30, 1999).
The Company currently has a $110,000 Credit Facility, of which $85,988 was
outstanding as of September 30, 1999. This credit facility bears interest
between 137.5 and 162.5 basis points over LIBOR depending on certain debt ratios
(7.51% at September 30, 1999) and matures October 2000. The credit facility is
secured by mortgages on various properties and contains financial covenants
relating to liabilities-to-assets ratio, minimum operating coverage ratios and a
minimum equity value. As of September 30, 1999, the Company was in compliance
with the covenant terms.
At September 30, 1999, outstanding letters of credit issued under the
Credit Facility amounted to $912.
In 1998, the Company executed an interest rate swap agreement to limit the
Company's exposure to increases in interest rates on its floating rate debt. The
notional amount of the agreement was $75,000. Based on rates currently in effect
under the Company's Credit Facility, the agreement provides for a fixed rate of
7.425% through October 2000. The Company is exposed to credit loss in the event
of non-performance by the other parties to the interest rate swap agreement,
however; the Company does not anticipate non-performance by the counter parties.
After taking into account the impact of converting the variable rate debt
into fixed rate debt by use of the rate protection agreement, the Company's
variable rate debt accounted for $87,677 of outstanding debt with a weighted
average interest rate of 8.39%. Variable rate debt accounted for approximately
26.4% of the Company's total debt and 17.0% of its total capitalization.
Based on the debt and the market value of equity, the Company's debt to
total market capitalization (debt plus market value equity) ratio was 64.7% at
September 30, 1999
The four properties in which Ramco-Gershenson Properties, L.P. (the
"Operating Partnership"), owns an interest and are accounted for on the equity
method of accounting are subject to non-recourse mortgage
11
<PAGE> 12
indebtedness. At September 30, 1999, the pro rata share of non-recourse mortgage
debt on the unconsolidated properties (accounted for on the equity method) was
$11,633 with a weighted average interest rate of 8.45%.
The Company's current capital structure includes property specific
mortgages, two construction loans, the unsecured term loan, the Credit Facility,
Series A Preferred Shares, Common Shares and a minority interest in the
Operating Partnership. Currently, the minority interest in the Operating
Partnership represents the 29.0% ownership in the Operating Partnership which,
may under certain conditions, be exchanged for approximately 2.9 million Common
Shares.
As of September 30, 1999, Operating Partnership Units ("OP Units"), issued
are exchangeable for Common Shares of the Company on a one-for-one basis. The
Company, as sole general partner of the Operating Partnership, has the option to
exchange OP Units for cash based on the current trading price of the Company's
Common Shares. Assuming the exchange of all limited partnership interests in the
Operating Partnership, there would be outstanding approximately 10.2 million
Common Shares with a market value of approximately $151,921 at September 30,
1999 (based on the closing price of $14.938 per share on September 30, 1999).
The principal uses of the Company's liquidity and capital resources are for
development, including expansion and renovation programs, acquisitions and debt
repayment. To maintain its qualification as a real estate investment trust under
the Internal Revenue Code of 1986, as amended (the "Code"), the Company is
required to distribute to its shareholders at least 95% of its "Real Estate
Investment Trust Taxable Income" as defined in the Code.
The Company anticipates that the combination of the availability under the
Credit Facility, potential new borrowings relative to the acquired properties
and development properties, construction loans, the sale of existing properties,
joint ventures, and potential future offering of securities under a shelf
registration statement will provide adequate liquidity for the foreseeable
future to fund future developments, expansions, repositionings, acquisitions and
to continue its currently planned capital programs and to make distributions to
its shareholders in accordance with the Code's requirements applicable to
REIT's. Although the Company believes that the combination of factors discussed
above will provide sufficient liquidity, no such assurance can be given.
COMPARISON OF NINE MONTHS ENDED SEPTEMBER 30, 1999 TO NINE MONTHS ENDED
SEPTEMBER 30, 1998.
Total revenues for the nine months ended September 30, 1999 increased by
14.3%, or $7,959, to $63,627 as compared to $55,668 for the nine months ended
September 30, 1998. Minimum rents increased 11.7%, or $4,679 to $44,813 for the
nine months ended September 30, 1999 as compared to $40,134 for the same period
in 1998. The acquisition of Southbay Fashion Center, Conyers Crossing, Aquia
Towne Center and Rivertowne Square during 1998 contributed $3,576 to the
increase in minimum rents for the nine months ended September 30, 1999.
Recoveries from tenants increased $2,278 or 15.9% to $16,599 for the nine
months ended September 30, 1999 as compared to $14,321 for the nine months ended
September 30, 1998. Of this increase, $637 relates to the 1998 acquisitions and
the remaining increase is attributable to increases in recoverable operating
expenses in 1999 for the Core Portfolio (shopping center properties owned as of
January 1, 1998). The recovery ratio for the nine months ended September 30,
1999 decreased to 97.8% from 99.3% for the same period in 1998. The decrease in
the ratio is attributable to lower recovery ratios at the 1998 acquisition
properties when compared to the Core Portfolio. If the four acquisition
properties were excluded from the calculation, the recovery ratio would have
been approximately 99% for the nine months ended September 30, 1999. As leases
expire at the properties acquired during 1998, new lease agreements should be
negotiated at rates similar to the Company's normal recovery ratio of
approximately 100%.
For the nine months ended September 30, 1999, percentage rents increased
$871, of which $225 was due to the four acquisitions made in 1998. Percentage
rents for the nine months ended September 30, 1998, would have been
approximately $300 higher if the Company had not been required to adopt the
Emerging Issues Task Force Issue No. 98-9, "Accounting for Contingent Rent in
Interim Periods" during the second quarter of
12
<PAGE> 13
1988. This statement was withdrawn in November 1998. Interest and other income
increased from $415 for the nine months ended September 30, 1998 to $546. The
material components of this increase were attributable to higher temporary
tenant rentals and additional interest income for the nine months ended
September 30, 1999.
Total expenses for the nine months ended September 30, 1999 increased by
10.9%, or $5,131, to $52,122 as compared to $46,991 for the nine months ended
September 30, 1998. The increase was due to a $2,547 increase in total
recoverable expenses, including real estate taxes and recoverable operating
expenses, a $1,073 increase in depreciation and amortization, a $141 increase in
other operating expenses, a $843 increase in general and administrative
expenses, and a $527 increase in interest expense.
Total recoverable expenses, including real estate taxes and recoverable
operating expenses, increased by 17.7%, or $2,547, to $16,968 as compared to
$14,421 for the nine months ended September 30, 1998. The increase in
recoverable expenses is primary attributable to the four acquisitions made
during 1998 and the opening of Home Depot at White Lake Marketplace development
during the first quarter of 1999.
Depreciation and amortization expense increased $1,073, or 12.0%, to
$10,008 as compared to $8,935 for the nine months ended September 30, 1998. The
increase is the result of acquisitions and renovations made during 1998. Other
operating expenses increased from $598 for the nine months ended September 30,
1998 to $739 for the nine months ended September 30, 1999. The increase is
primarily due to $101 of additional bad debt expense for the nine months ended
September 30, 1999 when compared to 1998.
Interest expense increased $527, from $18,688 to $19,215 for the nine
months ended September 30, 1999. The 2.8% increase is the result of additional
interest expense due to increased borrowings on the Credit Facility during 1999,
mortgage debt assumed in connection with the acquisition of Aqua Towne Center in
September 1998, and increased borrowings on construction loans during 1999.
The minority interest of $3,322 for the nine months ended September 30,
1999 represents a 29.0% share of income before minority interest of the
operating partnership compared to a 28.1% share of income before minority
interest, or $2,372 for the nine months ended September 30, 1998.
COMPARISON OF THREE MONTHS ENDED SEPTEMBER 30, 1999 TO THREE MONTHS ENDED
SEPTEMBER 30, 1998
Total revenues increased $2,131 or 11.2%, from $18,963 for the three months
ended September 30, 1998 to $21,094 for the three months ended September 30,
1999. The increase was a result of a $1,097 increase in minimum rents, a $612
increase in recoveries from tenants, $464 increase in percentage rents, offset
by a decrease of $42 in interest and other income.
Minimum rents for the three months ended September 30, 1999 increased
$1,097, or 8.0% to $14,790 from $13,693 for the three months ended September 30,
1998. The four properties acquired during 1998 and the opening of an anchor
store at White Lake MarketPlace development during the first quarter of 1999
accounted for $964 or 87.9% of this increase. Recoveries from tenants increased
12.1%, or $612, to $5,670 from $5,058 for the three months ended September 30,
1998. The impact of the 1998 acquisitions amounted to $172, or 28.1% of this
increase and the reaming increase is principally due to increases in recoverable
operating expenses in 1999 for the Core Portfolio.
The recovery ratio for the three months ended September 30, 1999 decreased
to 98.0% as compared to 101.0% for the comparable quarter ended September 30,
1998. The decrease in the ratio is attributable to lower recovery ratios at the
1998 acquisitions properties as compared to the Core Portfolio. As leases
turnover at these properties, the recovery ratios should increase to a level
comparable to the Company's normal ratio.
Percentage rents increased $464, from $46 for the three months ended
September 30, 1998, to $510 for the same period in 1999. Of this increase, $104
is attributable to the 1998 acquisitions included in the three months ended
September 30, 1999. Percentage rents for the three months ended September 30,
1998, would have been approximately $300 higher if the Company had not been
required to adopt Emerging Issues Task Force Issue No.98-9, "Accounting for
Contingent Rent in Interim Financial Periods" during the second quarter of 1998.
This statement was withdrawn in November 1998.
13
<PAGE> 14
Total expenses for the three months ended September 30, 1999 increased by
$1,196, or 7.4%, to $17,289 as compared to $16,093 for the three months ended
September 30, 1998. The increase was due to a $780 increase in total recoverable
expenses, including real estate taxes and recoverable operating expenses, a $297
increase in depreciation and amortization, an increase of $282 in general and
administrative expenses, an increase of $5 in other operating expenses and a
decrease of $168 in interest expense.
Total recoverable expenses, including real estate taxes and recoverable
operating expenses, increased by 15.6%, or $780, to $5,787 as compared to $5,007
for the three months ended September 30, 1998. Depreciation and amortization
increased by 9.7%, or $297, to $3,356 as compared to $3,059 for the three months
ended September 30, 1998, and general and administrative expenses increased
$282, or 20.1% to $1,682 as compared to $1,400 for the three months ended
September 30, 1998. The increase in recoverable expenses of $780 and
depreciation and amortization of $282 are primarily due to the 1998 acquisitions
and the opening of Home Depot at the White Lake MarketPlace development during
the first quarter of 1999.
Interest expense decreased $168, from $6,444 to $6,276 for the three months
ended September 30, 1999. The 2.6% decrease is primarily attributable to $597 of
interest capitalized during the three months ended September 30, 1999, and the
reduction of the Credit Facility during the quarter ended September 30, 1999.
The minority interest of $1,106 for the three months ended September 30,
1999 represents a 29.0% share of income before minority interest of the
operating partnership compared to a 28.9% share of income before minority
interest, or $810 for the three months ended September 30, 1998.
GENERAL AND ADMINISTRATIVE
Following is a breakdown of the general and administrative expenses shown
in the financial statements:
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
---------------- ----------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Management fees............................................. $ 687 $ 234 $1,457 $ 686
Leasing and development fees................................ 99 5 336 147
Other revenues.............................................. 188 216 612 561
Leasing/Development cost reimbursements..................... 545 391 1,740 1,395
------ ------ ------ ------
Total revenues......................................... 1,519 846 4,145 2,789
------ ------ ------ ------
Employee expenses........................................... 1,517 1,213 4,435 3,687
Office and other expenses................................... 410 315 1,290 1,112
Depreciation and amortization............................... 22 67 181 195
------ ------ ------ ------
Total expenses......................................... 1,949 1,595 5,906 4,994
------ ------ ------ ------
Operating partnership cost reimbursement expenses........... 430 749 1,761 2,205
------ ------ ------ ------
Operating partnership administrative expenses............... 762 539 2,269 1,811
------ ------ ------ ------
Shopping center level general and administrative expenses... 490 112 1,162 333
------ ------ ------ ------
Total general and administrative expenses......... $1,682 $1,400 $5,192 $4,349
====== ====== ====== ======
</TABLE>
For the three months ended September 30, 1999, management fees revenue
included $307 of acquisition fees paid to the Company by affiliated joint
venture entities. The increase in general and administrative expenses, when
compared to the nine months ended September 30, 1998 is primarily due to
corporate general salary increases and an increase in headcount when compared to
the nine months ended September 30, 1998.
FUNDS FROM OPERATIONS
Management generally considers funds from operations ("FFO") to be one
measure of financial performance of an equity REIT. It has been presented to
assist investors in analyzing the performance of the Company and to provide a
relevant basis for comparison to other REITs.
14
<PAGE> 15
The Company has adopted the most recent National Association of Real Estate
Investment Trusts ("NAREIT") definition of FFO, which was effective on January
1, 1996. Under the NAREIT definition, FFO represents income (loss) before
minority interest (computed in accordance with generally accepted accounting
principles), excluding gains (losses) from debt restructuring and sales of
property, plus real estate related depreciation and amortization (excluding
amortization of financing costs), and after adjustments for unconsolidated
partnerships and joint ventures.
Therefore, FFO does not represent cash generated from operating activities
in accordance with generally accepted accounting principles and should not be
considered an alternative to net income as an indication of the Company's
performance or to cash flows from operating activities as a measure of liquidity
or of the ability to pay distributions. Furthermore, while net income and cash
generated from operating, investing and financing activities determined in
accordance with generally accepted accounting principles consider capital
expenditures which have been and will be incurred in the future, the calculation
of FFO does not.
The following table illustrates the calculation of FFO for the three months
and nine months ended September 30, 1999, and 1998:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------ ------------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net Income.............................................. $ 2,678 $ 1,995 $ 8,012 $ 6,077
Add: Depreciation and amortization.................... 3,374 3,066 10,028 8,956
Add: Minority interest in partnership................. 1,106 810 3,322 2,372
------- ------- ------- -------
Funds from operations -- diluted........................ 7,158 5,871 21,362 17,405
Less: Preferred share dividends....................... (859) (345) (2,548) (908)
------- ------- ------- -------
Funds from operations -- basic.......................... $ 6,299 $ 5,526 $18,814 $16,497
======= ======= ======= =======
Weighted average equivalent shares outstanding(1)
Basic................................................. 10,170 10,010 10,170 9,931
======= ======= ======= =======
Diluted............................................... 12,170 10,831 12,171 10,681
======= ======= ======= =======
Supplemental disclosure:
Straight-line rental income........................... $ 472 $ 662 $ 1,587 $ 1,413
======= ======= ======= =======
Amortization of management contracts and covenants not
to compete......................................... $ 124 $ 124 $ 372 $ 372
======= ======= ======= =======
</TABLE>
- -------------------------
(1) For basic FFO, represents the weighted average total shares outstanding,
assuming the redemption of all Operating Partnership Units for Common
Shares. For diluted FFO, represents the weighted average total shares
outstanding, assuming the redemption of all Operating Partnership Units for
Common Shares, the Series A Preferred Shares converted to Common Shares, and
the common shares issuable under the treasury stock method upon exercise of
stock options.
CAPITAL EXPENDITURES
During the nine months ended September 30, 1999, the Company spent
approximately $24,339 on revenue generating capital expenditures including
tenant allowances, leasing commissions paid to third-party brokers, legal costs
relative to lease documents, capitalized leasing, land acquisition costs and
construction costs. These types of costs generate a return through rents from
tenants over the term of their leases. Revenue enhancing capital expenditures,
including expansions, renovations or repositionings, were approximately $9,557.
Revenue neutral capital expenditures, such as roof and parking lot repairs,
which are anticipated to be recovered from tenants, amounted to approximately
$1,538.
15
<PAGE> 16
YEAR 2000
The Year 2000 issue is a result of computer programs and embedded
microprocessors being designed to function using a two-digit year designation
rather than the now customary four-digit extension. On January 1, 2000, computer
programs and embedded systems that have date sensitive hardware or software may
interpret a date extension of "00" as the year 1900 rather than the year 2000.
As a result, systems failures and/or programming miscalculations may occur
causing operational disruptions which could hinder the Company's ability to
process transactions, collect rents, or engage in other standard business
activities.
The Company believes that it has identified and inventoried all information
and non-information based technology systems that need to be assessed for Year
2000 readiness. All systems identified have been classified by the Company as
either mission critical or non-mission critical. Mission critical systems
include, but are not limited to: general ledger, accounts payable and
receivable, human resources, payroll, fixed assets, cash management, and all
associated information technology (IT) hardware. Non-IT systems which have been
deemed to be critical in nature include corporate and mall telephone systems, on
and off-site facsimile and copy machines, and security systems.
The Company has conducted and completed an assessment of all mission
critical and non-mission critical systems. The majority of these systems are
either currently Year 2000 compliant or are in the process of being upgraded to
become compliant. The Company continues to evaluate both its critical and
non-critical information technology systems as new information becomes available
from our vendors and product manufacturers.
The Company has surveyed the majority of its vendors and tenants in an
effort to inform and question the state of their Year 2000 readiness. To date,
the Company is not aware of any vendor or tenant whose Year 2000 issue would
materially impact operations. However, there can be no assurances that the
systems of other companies, on which the Company relies upon, will be
functionally ready for the Year 2000.
In September 1999, the Company entered into what it considers to be the
final phase of its remediation efforts. The Company continues to work on
contingency planning as it considers various possible scenarios. It is
anticipated that a contingency plan will be in place prior to the end of
November 1999.
The Company believes that it has an effective Year 2000 program in place.
Aside from catastrophic failure of utilities, banks, or governmental agencies
the Company believes that normal business operations should not be effected
materially. The cost associated with Year 2000 testing and remediation have not
had a material impact on the results of operations during the first nine months
ended September 30, 1999, and management does not currently anticipate that
there will be a material impact during the fourth quarter of 1999.
ECONOMIC CONDITIONS
Substantially all of the leases at the Company's properties provide for
tenants to pay their pro rata share of operating expenses, including common area
maintenance and real estate taxes, thereby reducing the Company's exposure to
increases in operating expenses resulting from inflation. Many of the tenants'
leases contain provisions designed to lessen the impact of inflation. Such
provisions include the ability to receive percentage rentals based on a tenant's
gross sales, which generally increase as prices rise, and/or escalation clauses,
which generally increase rental rates during the terms of the leases. In
addition, many of the leases are for terms of less than ten years, which may
enable the Operating Partnership to replace existing leases with new leases at a
higher base and/or percentage rentals if rents of the existing leases are below
the then existing market rate.
The retail industry has experienced some financial difficulties during the
past few years and certain local, regional and national retailers have filed for
protection under bankruptcy laws. If this trend should continue, the Company's
future earnings performance could be negatively impacted.
16
<PAGE> 17
FORWARD LOOKING STATEMENTS
This Form 10-Q contains forward-looking statements with respect to the
operation of certain of the Company's properties. Management of the Company
believes the expectations reflected in the forward-looking statements made in
this document are based on reasonable assumptions. Certain factors could occur
that might cause actual results to vary. These include general economic
conditions, the strength of key industries in the cities in which the Company's
properties are located, the performance of the Company's tenants at the
Company's properties and elsewhere, and other factors discussed in this report
and the Company's reports filed with the Securities and Exchange Commission.
17
<PAGE> 18
PART II -- OTHER INFORMATION
ITEM 4 -- EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
See Exhibit Index immediately preceding the exhibits.
(b) Reports on Form 8-K
No reports on Form 8-K have been filed during the quarter ending September
30, 1999.
18
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed in its behalf by the
undersigned thereunto duly authorized.
RAMCO-GERSHENSON PROPERTIES TRUST
<TABLE>
<S> <C>
Date: November 12, 1999 By: /s/ DENNIS E. GERSHENSON
----------------------------------------------------
Dennis E. Gershenson
President and Trustee
(Chief Executive Officer)
Date: November 12, 1999 By: /s/ RICHARD J. SMITH
----------------------------------------------------
Richard J. Smith
Chief Financial Officer
(Principal Accounting Officer)
</TABLE>
19
<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<C> <S>
10.1 Limited Liability Company Agreement of RPT/INVEST L.L.C.
dated August 23, 1999.
27.1 Financial Data Schedule
</TABLE>
<PAGE> 1
EXHIBIT 10.1
LIMITED LIABILITY COMPANY AGREEMENT OF
RPT/INVEST L.L.C.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I FORMATION, NAME, PURPOSES, PRINCIPAL OFFICE, TERM OF THE COMPANY AND RELATED MATTERS 1
1.01 Formation 1
1.02 Name 1
1.03 Purposes 2
1.04 Principal Office, Registered Offices and Resident Agent 3
1.05 Term 3
1.06 Treatment of the Company 4
ARTICLE II CAPITAL AND RELATED MATTERS 4
2.01 Initial Capital Contributions 4
2.02 Additional Capital Contributions 4
2.03 Failure to Contribute Additional Capital 6
2.04 Return of Capital Contributions 8
2.05 Limited Liability of Members 8
2.06 Financing 8
ARTICLE III ALLOCATIONS AND DISTRIBUTIONS 9
3.01 Allocations of Profit and Loss 9
3.02 Distribution of Cash Flow 12
3.03 Distribution of Net Sale or Refinancing Proceeds 14
3.04 Applicability 17
ARTICLE IV MEETINGS OF MEMBERS AND RELATED MATTERS 17
4.01 Annual Meetings 17
4.02 Reimbursement for Costs and Expenses 17
4.03 Exclusivity Provisions 17
4.04 Management of the Shopping Center 20
4.05 Leasing Activities 21
4.06 Acquisition Fees 21
4.07 Disposition Fees 21
4.08 Asset Management Fees 21
4.09 Options To Purchase Shopping Centers 22
4.10 Right of First Offer in Respect of a Shopping Center 24
4.11 Competing Shopping Centers 26
ARTICLE V MANAGEMENT 26
5.01 Management and Responsibilities of the Manager 26
5.02 Investment Committee 28
5.03 Number; Election; Term of Office; and Qualifications 32
5.04 Resignation 32
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
5.05 Vacancies 33
5.06 Annual and Regular Meetings 33
5.07 Special Meetings 33
5.08 Notice of Meetings 33
5.09 Quorum 33
5.10 Reimbursement 34
5.11 Participation in a Meeting by Conference Telephone 34
5.12 Written Consent in Lieu of Meeting 34
5.13 Minutes 34
ARTICLE VI BOOKS, RECORDS AND ACCOUNTING 34
6.01 Fiscal Year Accounting 34
6.02 Books and Records 34
6.03 Tax Matters Partner 35
6.04 Tax Information and Financial Statements 35
ARTICLE VII ASSIGNMENT OF MEMBERSHIP INTERESTS, WITHDRAWAL OF A MEMBER AND RELATED MATTERS 36
7.01 Assignment 36
7.02 Substitution of Members 36
7.03 Transfers of Interests in Members 37
7.04 References to "Member" and "Members" in the Event of Successors 37
7.05 Prohibition on Withdrawal 38
7.06 Occurrence of a Disability Event With Respect to a Member 39
7.07 Single Representative to Act on Behalf of Successors 39
7.08 Succession by Individuals to Membership Interests of Members 40
ARTICLE VIII DISSOLUTION AND WINDING UP; CONTINUATION OF BUSINESS 40
8.01 Winding Up and Liquidation of the Company 40
8.02 Certificate of Dissolution 40
ARTICLE IX MISCELLANEOUS PROVISIONS 40
9.01 Indemnification 40
9.02 Contribution Amount/Cross Indemnity 41
9.03 Put Option for Initial Acquisition Properties 43
9.04 Notices 45
9.05 Terms 46
9.06 Article and Section Headings 46
9.07 Entire Agreement 47
9.08 Severability 47
9.09 Amendment 47
9.10 Binding Effect 47
ii
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
9.11 Governing Law 47
9.12 Counterparts 47
9.13 No Third Party Rights Created Hereby 47
9.14 Additional Acts and Instruments 48
9.15 Date of Agreement 48
9.16 Right of Setoff 48
ARTICLE X DEFINITIONS 49
10.01 Definitions 49
</TABLE>
iii
<PAGE> 5
LIMITED LIABILITY COMPANY AGREEMENT OF
RPT/INVEST L.L.C.
THIS LIMITED LIABILITY COMPANY AGREEMENT is made and entered into as of
the 23rd day of August, 1999, by and between (i) Ramco-Gershenson Properties,
L.P., a Delaware limited partnership with offices located at 27600 Northwestern
Highway, Suite 200, Southfield, Michigan 48304 ("Ramco") and (ii) Shop Invest,
LLC, a Delaware limited liability company with offices located at 280 Park
Avenue, 37th Floor, New York, New York 10017 ("Investcorp"). All capitalized
terms used in this Agreement are defined in Article X of this Agreement.
R E C I T A L S:
A. Ramco and Investcorp desire to form a limited liability company (the
"Company") under the Delaware Limited Liability Company Act, Delaware Code
Annotated, Title 18, ss.ss.101 to 1107 (the "Act") for the purposes and term set
forth in this Agreement.
B. Ramco and Investcorp desire to evidence their agreements with
respect to the Company by entering into this Agreement.
Accordingly, the parties agree as follows:
ARTICLE I
FORMATION, NAME, PURPOSES, PRINCIPAL OFFICE,
TERM OF THE COMPANY AND RELATED MATTERS
1.01 FORMATION
The Members hereby authorize the execution of a Certificate of
Formation with respect to the Company (the "Certificate") and the filing thereof
with the office of the Secretary of State for the State of Delaware. The Company
shall be formed on the date the Certificate is filed with the office of the
Secretary of State for the State of Delaware ("Formation Date"). The
relationship of the Members, with respect to the Company, shall be governed by
this Agreement.
1.02 NAME
The name of the Company shall be RPT/Invest L.L.C. The Company may also
conduct its business under such assumed name or names as shall be selected by
both Ramco and Investcorp at any time and from time to time.
<PAGE> 6
1.03 PURPOSES
a. The Company is being formed, and the purposes of the Company are, to
(i) become, act as, and perform the obligations of, exercise the rights of, and
take the actions required of, direct or indirect, the sole shareholder, partner,
member or other type of equity owner of Project Entities in connection with such
Project Entities and each of their respective businesses, and (ii) engage in any
and all activities related or incidental to the foregoing. The Members hereby
acknowledge it is the purpose of that the Company to acquire, manage, asset
manage, lease, sell, finance, refinance, develop, redevelop and dispose of,
through the Project Entities and through the Company, Shopping Centers whose
aggregate acquisition costs are equal to One Hundred Twenty-five Million Dollars
($125,000,000.00) (including the values ascribed to the Initial Acquisition
Properties). Each of the Project Entities shall be managed by the Investment
Committee through the Company pursuant to the terms hereof.
b. The Members hereby acknowledge and agree that they all will cause
the Company, on behalf of Project Entities to be formed, to target the
acquisition of Shopping Centers in the Midwest, Mid-Atlantic and Northeast
United States. In that regard, the Members hereby establish the following
investment criteria (the "Target Investment Criteria"): (i) Shopping Centers
that are Class A or B Shopping Centers of greater than 100,000 square feet; (ii)
Shopping Centers that are located in a major metropolitan area possessing
demographic characteristics similar to those areas where the Initial Acquisition
Properties are located, (iii) Shopping Centers that are well anchored in a prime
location and are situated along roads and highways with substantial traffic
counts; (iv) Shopping Centers that are located near major retail hubs, (v)
Shopping Centers that have occupancy rates of eighty-five percent (85%) or
greater with relatively modest tenant turnover, (vi) Shopping Centers that can
have their value enhanced by professional management, redevelopment, expansion,
professional leasing and the infusion of capital, and (vii) Shopping Centers
that have strong anchor alignment. In connection with the acquisition of such
Shopping Centers, the initialization capitalization rates will be targeted at
nine and one-half percent (9.50%) to ten and one-half percent (10.50%) on
actual, in-place net operating income with the purchase price not exceeding
eighty percent (80%) of new construction costs. The Members also intend, as part
of the Target Investment Criteria, to target Shopping Centers that produce
internal rates of return which derive from reasonable growth rates (typically
three percent [3%]), market lease rates, conservative credit loss estimates,
market lease terms and market tenant improvements. The Members hereby
acknowledge and agree that the Target Investment Criteria are intended as
guidelines and while they accurately reflect the intentions of the Members, they
are not intended to preclude Ramco from pursuing and presenting the Company with
acquisition possibilities that do not reflect the Target Investment Criteria in
all respects.
2
<PAGE> 7
c. The Company shall have all the powers necessary or appropriate for
the accomplishment of the Company's purposes.
1.04 PRINCIPAL OFFICE, REGISTERED OFFICES AND RESIDENT AGENT
a. The principal office of the Company shall be located at 27600
Northwestern Highway, Suite 200, Southfield, Michigan 48304. The Company shall
have an office at such other address(es) as may be designated from time to time
by the Investment Committee by majority vote, including such offices as may be
required by each jurisdiction in which the Company transacts business, or
expects to transact business. The address of the office of the Company in the
State of Delaware required to be maintained pursuant to the Act is c/o The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801, or such other address as may be designated from time
to time by the Investment Committee by majority vote.
b. The name and address of the registered agent for service of process
on the Company in the State of Delaware is The Corporation Trust, whose address
is Corporation Trust Center 1209 Orange Street, Wilmington, Delaware 19801, or
such other agent and address as may be designated from time to time by the
Investment Committee by majority vote. In addition, Investment Committee by
majority vote shall appoint such other registered agents for service of process
on the Company, as may be required by those jurisdictions in which the Company
transacts business, or expects to transact business.
1.05 TERM
a. The term of the Company shall commence on the Formation Date.
b. The term of the Company shall end and the Company shall dissolve on
the date that is six (6) years from the closing of the acquisition of the last
shopping center acquired by the Company unless extended by the vote of a
numerical majority of the members of the Investment Committee (the "Termination
Date"); however, if any of the following events shall occur prior to the
Termination Date, the Company shall dissolve on the first to occur of such
events:
(1) The sale or other disposition of all or substantially all
the assets of the Company;
(2) The decision of Ramco and Investcorp to terminate the
Company; or
(3) Any other event which, under this Agreement or the Act,
results in the dissolution of the Company.
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1.06 TREATMENT OF THE COMPANY
The Members have formed the Company as a limited liability company
under and pursuant to the Act. The Members specifically intend and agree that
the Company not be a partnership (including, a limited partnership) or any other
venture, but a limited liability company under and pursuant to the Act. No
Member shall be construed to be a partner in the Company or a partner of any
entity or Member. The Certificate and this Agreement and the relationships
created thereby and arising therefrom shall not be construed to suggest
otherwise. Notwithstanding the foregoing, the Members intend that the Company be
treated as a partnership for federal income tax purposes.
ARTICLE II
CAPITAL AND RELATED MATTERS
2.01 INITIAL CAPITAL CONTRIBUTIONS
Either contemporaneously with the execution of this Agreement, or as
soon as practicable thereafter, each Member shall initially contribute to the
capital of the Company cash or property in the amount set forth opposite its
respective name in column (2) on Exhibit A attached hereto.
2.02 ADDITIONAL CAPITAL CONTRIBUTIONS
a. If, at any time and from time to time during the term of the
Company, the Investment Committee determines that the Company requires
additional capital in order for the Company to fund one or more Project Entities
to acquire one or more Shopping Centers, and such funds are not otherwise
available from third party financing or Company reserves or cash balances, then,
and in that event, each Member shall (and hereby agrees to) contribute such
required additional capital to the Company, pro rata, in accordance with its
respective Applicable Percentages. Investcorp, on the one hand, and Ramco, on
the other, shall only be required to contribute to the capital of the Company
pursuant to this Section 2.02a an aggregate maximum amount of Thirty-seven
Million Five Hundred Thousand Dollars ($37,500,000.00) (the "Maximum Required
Aggregate Contribution")(which amount shall include, for purposes of this
Section 2.02a hereof, the initial capital contribution of each Member as set
forth in Section 2.01 hereof and all additional capital contributions made
pursuant to this Section 2.02a). The Maximum Required Aggregate Contribution
shall be made by the Members pro rata based on each Member's respective
Applicable Percentage pursuant to a Capital Call Notice (as hereinafter defined)
sent to the Members pursuant to the provisions of Section 2.02c hereof.
Notwithstanding anything contained in this Agreement to the contrary, the
Members shall not be required to contribute in the aggregate more than thirty
percent (30%) of the acquisition costs of any one Shopping Center unless both
Members agree otherwise. In calculating the maximum Thirty-seven Million Five
Hundred Thousand Dollars ($37,500,000.00) capital contribution
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requirement of the Members under this Section 2.02a, the Members hereby agree
that the amount of any distributions made by the Company to the Members (of cash
or property) pursuant to this Agreement shall not be deemed to have reduced the
total amount that each Member has contributed to the capital of the Company to
date. The Members hereby acknowledge and agree, however, that it is their
intention that the Investment Committee obtain third-party non-recourse
financing (subject to customary exceptions from the exculpatory clause) of up to
seventy percent (70%) of the total acquisition costs of the Shopping Centers to
be purchased by any Project Entity. In this regard, the Members hereby
acknowledge and agree that any and all costs incurred in connection with any
financing obtained by such Project Entity shall be a direct obligation of such
Project Entity. Notwithstanding anything contained in this Agreement to the
contrary, the obligations of the Members to make additional capital
contributions under this Section 2.02a shall terminate on a date that is two
hundred and seventy (270) days from the date of this Agreement (such date is
hereinafter referred to as the "Investment Termination Date"); provided,
however, that the Investment Termination Date shall be extended with respect to
any Shopping Center if such Shopping Center is then under contract, but the
closing has not yet occurred.
b. If, at any time and from time to time, during the term of the
Company, the Investment Committee determines that the Company needs additional
funds to operate the business of each Project Entity in order to accomplish any
of the purposes of the Company other than those set forth in Section 2.02a
hereof, including, but not limited to, capital improvements, tenant
improvements, brokerage commissions to be paid and debt service obligations to
be met, the Investment Committee shall send a Capital Call Notice (as
hereinafter defined) to the Members pursuant to the provisions of Section 2.02c
hereof. The Members shall be required to make such additional capital
contributions hereunder pursuant to the provisions of such Capital Call Notice.
Nothing in this Section 2.02b shall be construed as prohibiting the Investment
Committee from deciding to borrow the required additional capital needed
hereunder instead of requiring additional capital contributions from the
Members. The members of the Investment Committee hereby agree that the
Investment Committee shall be required to send a Capital Call Notice with
respect to capital required to fund amounts contemplated by an approved budget
(either because such capital call was specifically contemplated by the Budget,
or if and to the extent cash flow is insufficient to fund such amounts),
provided that no such capital call notice shall be sent if four out of five
members of the Investment Committee elect to not require such additional
capital.
c. The Investment Committee, once it has decided to require (or is
deemed to have decided pursuant to the last sentence of Section 2.02 b)
additional capital contributions from the Members pursuant to Sections 2.02a or
2.02b hereof, shall cause the Manager to send a written notice to each of the
Members (the "Capital Call Notice"). The Capital Call Notice shall state (i) the
total amount of cash required, (ii) each Member's share of such required cash
(which shall be based on each Member's
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respective Applicable Percentage), and (iii) the date by which each Member is
obligated to contribute its share of such required cash (which shall be the
earlier of five [5] days from the date the Capital Call Notice was sent or two
[2] business days before a property acquisition closing date with respect to
funds that are due at the closing of such acquisition).
d. The obligations of the Members to make additional capital
contributions under this Agreement shall only be enforceable by the Members and
not by creditors of any Member or by any third party. In the event any creditor
of a Member or of the Company succeeds to all or a portion of the Membership
Interest of a Member, the other Member shall thereupon be released from all
further obligations under this Section 2.02.
2.03 FAILURE TO CONTRIBUTE ADDITIONAL CAPITAL
a. If either Ramco or Investcorp does not pay the Company, when due,
any amount that each such Member is obligated to contribute to the Company under
the provisions of Sections 2.01 and 2.02 a hereof (such Member being hereinafter
referred to as the "Defaulting Member" and such amount being hereinafter
referred to as the "Omitted Contribution"), and the other Member has paid to the
Company, when due, all amounts that it is then, or was prior thereto, obligated
to contribute to the Company under such Sections (a "Nondefaulting Member"), the
Investment Committee or such non-defaulting Member may, if it so elects, give
notice of such nonpayment to the Defaulting Member. If the Defaulting Member
does not make payment within the earlier to occur of: (i) two (2) business days
prior to the closing of the acquisition contemplated by Section 2.02 a hereof;
or (ii) five (5) days after the giving of such notice, and such event of default
relates to a failure to contribute to the Company pursuant to Sections 2.01 and
2.02a hereof, the Nondefaulting Member, for and on behalf of itself and the
Company, shall have the following remedies:
(1) The Nondefaulting Member shall have the right to advance an
amount equal to the Omitted Contribution. The amount so advanced shall
constitute (i) a loan from the Nondefaulting Member to the Defaulting
Member, and (ii) a capital contribution by the Defaulting Member to the
Company. Such a loan shall (i) bear interest at a per annum rate equal
to ten percent (10%) above the "prime" (or equivalent) rate publicly
announced from time to time by BankBoston, N.A., or if BankBoston,
N.A., ceases to announce such a rate, then ten percent (10%) above the
"prime" (or equivalent) rate publicly announced by any other bank in
the New York City metropolitan area specified by the Nondefaulting
Member (or the highest rate which, by law, the Defaulting Member may be
charged, whichever is lower), (ii) be payable on demand, (iii) be
secured by the Defaulting Member's Membership Interest, and (iv) at the
election of the Nondefaulting Member, be evidenced by a promissory
note, containing such
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terms and provisions, not inconsistent with the provisions of this
Section 2.03a(1), as shall be specified by the Nondefaulting Member.
Upon not less than five (5) days prior request, the Defaulting Member
shall execute and deliver to the Nondefaulting Member such promissory
note, and all related documents (including, but not limited to, a
Uniform Commercial Code Financing Statement to perfect the
aforementioned security interest) specified by the Nondefaulting
Member, and if the Defaulting Member shall fail or refuse to execute
any of such documents, the Nondefaulting Member shall be the Defaulting
Member's true and lawful attorney-in-fact, with full power of
substitution, in its name and on its behalf, to execute and deliver
such promissory note and related documents. If the Nondefaulting Member
shall make such an advance (-1-) the portion of all Company
distributions otherwise payable to the Defaulting Member and all fees
of any kind payable to such Member or any of its affiliates shall,
instead of being paid to the Defaulting Member, be paid to the
Nondefaulting Member and applied against the loan resulting from such
an advance but for tax purposes be deemed to have been distributed to
the Defaulting Member, and (-2-) the Defaulting Member shall not, as a
result of the making of any such advance, be treated as having cured
its default and it shall continue to be a Defaulting Member until the
principal of, and all accrued interest on, the loan resulting from such
an advance has been paid in full.
(2) With respect to a failure to contribute capital under
Section 2.02a and failure to cure as set forth in Section 2.03a, the
Nondefaulting Member shall have the unrestricted right, on its own or
through one or more of its Affiliates, directly or indirectly, to
purchase, own and operate the Shopping Center in question and the
Defaulting Member shall have no rights or claims whatsoever as a result
of such activities.
b. If either Ramco or Investcorp fails to contribute any amount that it
is obligated to contribute to the Company under the provisions of Section 2.02b
hereof, or if the Nondefaulting Member does not exercise its right under Section
2.03a above, and the Company, through a Property Entity, acquires same, then the
Nondefaulting Member shall be able to avail itself of the remedy set forth in
Section 2.03a(1) hereof, the Investment Committee or such Nondefaulting Member
may, if it so elects, give notice of such nonpayment to the Defaulting Member.
If the Defaulting Member does not make payment within ninety (90) days after the
giving of such notice, the Nondefaulting Member, for and on behalf of itself and
the Company, shall have the following additional remedies:
(1) If Investcorp is the Defaulting Member, Ramco's purchase
rights as set forth in Section 4.11 hereof shall continue until the
Termination Date with respect to the Shopping Center in question and
shall not be restricted by any
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time limits whatsoever as to the period of time within which such
rights must be exercised prior to such date;
(2) Until such time as the Nondefaulting Member has been repaid
all amounts owing pursuant to Section 2.03a(1) hereof, the members of
the Investment Committee who were designated by the Defaulting Member
shall lose all of their voting and management rights with respect to
the Shopping Center in question for which the additional capital was
required;
(3) If Ramco is the Defaulting member under Section 2.02b
hereof, then Ramco and its Affiliates shall permanently lose their
property management and leasing rights and associated fees, as well as
its rights pursuant to Section 4.09 and 4.10 hereof, and only with
respect to the Shopping Center in question for which the additional
capital was required; and
(4) The Defaulting Member shall permanently lose its asset
management rights and fees pursuant to Section 4.08 hereof with respect
to the Shopping Center in question for which the additional capital was
required.
2.04 RETURN OF CAPITAL CONTRIBUTIONS
Except as otherwise provided in this Agreement, no Member shall have
the right to withdraw its capital contributions or to demand or receive the
return of its capital contributions or any part thereof.
2.05 LIMITED LIABILITY OF MEMBERS
The Members shall not be liable for the acts, debts or obligations of
the Company or any other Member. No member shall be liable to the Company or any
other member for any amount in excess of its invested capital in the Company.
2.06 FINANCING
The Investment Committee, in conjunction with the Manager, shall target
third party financing for each Project Entity in an amount equal to seventy
percent (70%) of the total acquisition costs of each Shopping Center. Such
financing shall (i) be competitively priced, (ii) have a term of 3 years or less
and, if available, with options to extend five (5) years, (iii) have a floating
or a fixed rate of interest and (iv) be made on a totally non-recourse basis to
the Members (subject to customary exceptions from the exculpatory clause).
Notwithstanding anything contained in this Agreement to the contrary, the
Investment Committee must approve all financing obtained by the Company for any
purpose for any Project Entity that is secured by the assets of the Company or
any Project Entity.
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ARTICLE III
ALLOCATIONS AND DISTRIBUTIONS
3.01 ALLOCATIONS OF PROFIT AND LOSS
a. After giving effect to the allocations set forth in Sections 3.01b
through 3.01f hereof, Profit or Loss for each taxable period shall be allocated
to the Members as follows:
(1) First, Profit shall be allocated to the Members having
deficit balances in their Augmented Capital Accounts (as defined
below), after taking into account all distributions with respect to
such taxable period, in proportion to such deficit balances until such
deficit balances have been eliminated;
(2) Second, Profit (other than any Profit resulting from the
sale or other disposition of the property or assets of or interest in a
Project Entity) shall be allocated to the Members to the extent of and
in proportion to the amount necessary, so that the total Profits
allocated to each Member pursuant to this Section 3.01a(2) is equal to
the aggregate amount of Cash Flow distributed to such Member with
respect to such fiscal year and any previous fiscal year pursuant to
Section 3.02a; and
(3) Third, any remaining Profit or Loss for any fiscal year
shall be allocated among the Members so that, at the end of such year,
and after taking into account any distributions with respect to such
fiscal year, the Capital Account of each Member, increased by such
Member's "share of partnership minimum gain" and "share of partner
nonrecourse debt minimum gain" (as so increased, a Member's Capital
Account is hereinafter referred to as such Member's "Augmented Capital
Account"), is, as nearly as possible, positive in the amount that the
Company would distribute to such Member if the Company were to
distribute any surplus (positive balance) in Augmented Members' Capital
among the Members pursuant to Section 3.03 (disregarding Section 3.03e)
below; provided, however, that no Loss or item of expense or loss shall
be allocated to any Member for any fiscal year to the extent that such
allocation would create or increase a deficit in such Member's Adjusted
Augmented Capital Account (as hereinafter defined).
b. After giving effect to the allocations set forth in Sections 3.01c
through 3.01 f. hereof, items of gross income and gain shall be allocated to
each Member in an amount and manner sufficient to eliminate, as quickly as
possible, any deficit in such Member's Adjusted Augmented Capital Account to the
extent that such deficit is created or increased by any unexpected adjustments,
allocations or distributions described in Section 1.704-1(b)(2)(ii)(d) (4)-(6)
of the Treasury Regulations. This Section 3.01b and the proviso of Section 3.01a
are intended to comply with the "alternate test for economic
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effect" in Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations and shall be
interpreted consistently therewith.
c. If, for a fiscal year, there is a net decrease in "partner
nonrecourse debt minimum gain," then each Member shall be allocated items of
gross income or gain equal to such Member's share of such net decrease,
determined under Section 1.704-2(i) of the Treasury Regulations. However, in
accordance with Section 1.704-2(i)(4) of the Treasury Regulations, the preceding
sentence shall not apply to the extent that the net decrease in "partner
nonrecourse debt minimum gain" results from (i) a capital contribution from such
Member which is used to pay a liability of the Company or (ii) a refinancing or
lapse of a guarantee of, or any other change in, a liability of the Company that
causes such liability to become partially or wholly a "nonrecourse liability."
d. If, for a fiscal year, there is a net decrease in "partnership
minimum gain," then each Member shall be allocated items of income and gain
equal to such Member's share of such net decrease, determined in accordance with
Sections 1.704-2(f) and 1.704-2(g) of the Treasury Regulations. However, in
accordance with Section 1.704-2(f)(2) of the Treasury Regulations, the preceding
sentence shall not apply to the extent that the net decrease in "partnership
minimum gain" results from (i) a capital contribution from such Member which is
used to pay a liability of the Company or (ii) a refinancing or guarantee of, or
any other change in, a liability of the Company that causes such liability to
become partially or wholly a "partner nonrecourse debt" for which such Member
bears the economic risk of loss.
e. Any "nonrecourse deductions" for any fiscal year shall be allocated
sixty percent (60%) to Investcorp and forty percent (40%) to Ramco.
f. Any "partner nonrecourse deductions" for any fiscal year shall be
allocated to the Member who bears the economic risk of loss with respect to the
"partner nonrecourse debt" to which such "partner nonrecourse deductions" are
attributable in accordance with Section 1.704-2(i)(l) of the Treasury
Regulations.
g. For purposes of this Section 3.01:
(1) "Adjusted Augmented Capital Account" means, with respect
to any Member as of the end of any fiscal year, such Member's Augmented
Capital Account (i) reduced by those anticipated allocations,
adjustments and distributions described in Section
1.704-1(b)(2)(ii)(d)(4)-(6) of the Treasury Regulations, and (ii)
increased by the amount of any deficit in such Member's Capital Account
that such Member is deemed obligated to restore under Section
1.704-1(b)(2)(ii)(c) of the Treasury Regulations as of the end of such
fiscal year.
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(2) "Augmented Members' Capital" at the end of any year means
the total amount of capital (assets minus liabilities) appearing on the
Company's balance sheet as computed for book purposes within the
meaning of Section 10.01i below (taking into account Profit, Loss and
all items of income, gain, expense or loss for such year), increased by
the amount of "partnership minimum gain" and "partner nonrecourse debt
minimum gain" of the Company at the end of such year.
(3) "Profit" and "Loss" each means, for each fiscal year of
the Company or other period, the Company's profit or loss for federal
income tax purposes, adjusted as follows:
(i) Any tax exempt income described in Section 705(a)
(1)(B) shall be added to such taxable profit or loss;
(ii) Any nondeductible expenses described in Section
705(a)(2)(B) of the Code shall be subtracted from such
taxable profit or loss; and
(iii) Any items of income, gain, expense or loss
allocated pursuant to Section 3.01b, 3.01c, 3.01d, 3.01e or
3.01f hereof shall be disregarded and not taken into account
in the determination of Profit or Loss.
(4) All terms set off in quotation marks and not otherwise
defined shall have the meanings ascribed to them in Section 1.704-2 of
the Treasury Regulations.
h. It is intended that the amount to be distributed to a Member
pursuant to Section 7.1 of this Agreement shall equal the amount such Member
would receive if liquidation proceeds were instead distributed in accordance
with Section 3.03 (disregarding Section 3.03e) of this Agreement. This intended
distribution amount for a Member is referred to as such Member's "Targeted
Distribution Amount". Notwithstanding any preceding provision to the contrary in
this Section 3.01, if upon a termination and liquidation of the Company, any
Member's ending Capital Account balance immediately prior to the distributions
to be made pursuant to Section 7.1 of this Agreement would otherwise be less
than such Member's "Targeted Distribution Amount", then, to the extent amended
tax returns can be filed for prior fiscal years of the Company, such Member
shall be specially allocated items of income or gain for such prior years, and
items of loss or deduction for such prior years shall be allocated away from
such Member to the other Members, until Profit or Loss for the year(s) of
termination and liquidation of the Company can be allocated so as to cause such
Member's actual Capital Account balance to equal the Targeted Distribution
Amount for such Member (and such Profit or Loss shall be so allocated).
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3.02 DISTRIBUTION OF CASH FLOW
a. The Cash Flow of the Company, with respect to each fiscal year of
the Company, to the extent (and only to the extent) that the Investment
Committee determines, in the exercise of its sole discretion, that the Cash Flow
with respect to such fiscal year is not required for Company purposes and is
available for distribution to the Members, shall be distributed quarterly to,
and allocated between, the Members in the following order of priority:
(1) First, to Investcorp to the extent of its Preferred Return
(including any such amounts which were not paid during, and are
therefore carried forward from, any prior fiscal years);
(2) Next, to Ramco to the extent of its Preferred Return
(including any such amounts which were not paid during, and are
therefore carried forward from, any prior fiscal years); and
(3) The balance, if any, to the Members pro rata, based on
their respective Applicable Percentages.
Notwithstanding the foregoing, if any Member shall have made a loan to
the other Member in accordance with Section 2.03a hereof, then any distribution
to be made to the borrowing Member hereunder shall instead be made to the
lending Member until such time as all principal and interest due and owing under
such loan has been paid in full (provided, however, for tax purposes such
distribution shall be deemed made to the borrowing Member).
The Members hereby acknowledge that it is their intention to distribute
the maximum amount of Cash Flow annually, subject to the Investment Committee's
determination of necessary reserve requirements and subject to the other
provisions of this Agreement.
b. As used in this Agreement:
(1) "Cash Flow" means, with respect to each fiscal year of the
Company, the excess of (i) all distributions of "Distributable Project
Entity Cash Flow" received by the Company from each Project Entity
during such fiscal year, less (ii) the portion of such Distributable
Project Entity Cash Flow expended by the Company for any purpose
(except as distributions of Cash Flow pursuant to Section 3.02a hereof)
during such fiscal year, as determined by an agreed upon budget for the
Company approved by the Investment Committee, or set aside by the
Investment Committee as reserves for any purpose during such fiscal
year; and
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(2) "Distributable Project Entity Cash Flow" means, with respect
to each Project Entity and with respect to each fiscal year of each
Project Entity, the excess of Cash Receipts with respect to each such
fiscal year over Cash Disbursements for such fiscal year. For this
purpose:
(a) "Cash Receipts" means, with respect to each Project
Entity and each fiscal year of each Project Entity, the sum of:
(i) The revenues of such Project Entity generated by its
operations received in cash during such fiscal year (not
including Project Entity Net Sale or Refinancing Proceeds
[defined below]);
(ii) Any amounts previously set aside as reserves by the
Project Entity in a prior fiscal year (including any interest
earned on such reserves), to the extent that the Investment
Committee determines that they are no longer necessary to be
held as reserves;
(iii) All proceeds received by such Project Entity
during such fiscal year from any and all operational (as
opposed to refinancing) loans for a particular operating
need, including, but not limited to, any loans made to the
Project Entity by any or its equity owners or affiliates
thereof; provided, however, the proceeds of Project Entity
Net Sale or Refinancing Proceeds (defined below) shall not be
included in this definition; and
(iv) All cash received by such Project Entity during
such fiscal year from any other source in connection with its
operations, except Project Entity Net Sale or Refinancing
Proceeds (defined below).
(b) "Cash Disbursements" means, with respect to each Project
Entity and each fiscal year of the each Projected Entity, the sum
of:
(i) The operating expenses of such Project Entity paid
in cash during such fiscal year (except to the extent any
such expenses are paid out of amounts set aside as reserves
in a prior fiscal year);
(ii) Interest on any and all Project Entity indebtedness
and obligations paid in cash during such fiscal year;
(iii) Payments made during such fiscal year with respect
to the discharge of any Project Entity indebtedness
(including
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interest and amortization pursuant to loan documents but not
the payoff of a loan from Project Entity Net Sale or
Refinancing Proceeds) and obligations (including those
obligations other than loans due and owing any Member or any
Affiliate of any Member) except if any such payments are made
in connection with, or out of the proceeds of, any
transaction referred to in Section 3.03c hereof;
(iv) The aggregate of all payments made during such
fiscal year with respect to capital improvements, tenant
improvements and inducements, leasing commissions, repairs,
equipment purchases and any other item relating to the
business of the Project Entity that is not properly
characterized as a current operating expense under Section
3.02b(2)(b)(i) hereof;
(v) The aggregate of all amounts that the Investment
Committee elects to deduct from Cash Receipts with respect to
such fiscal year and to set aside, use and/or pay, among
other things, (i) for working capital, (ii) as reserved (-1-)
for contingencies, (-2-) for the replacement or preservation,
during the current or any future fiscal year, of any Project
Entity property or assets, (-3-) to provide for accrued
liabilities, (-4-) for the payment or satisfaction current or
future Project Entity debts or obligations, and/or (-5-) for
any other Project Entity purposes; (iii) as escrow(s) to
provide for the payment or satisfaction of current or future
Project Entity debts or obligations (for example, real estate
tax or insurance escrow payments), or (iv) as collateral (or
to acquire collateral) for any present or future Project
Entity debt or obligation; and (v) capital reserves required
by the Investment Committee; and
(vi) All disbursements made by the Project Entity during
such fiscal year for any other purpose except for (i)
disbursements made out of the proceeds of any Project Entity
Net Sale or Refinancing Proceeds and (ii) distributions made
by such Project Entity to each of its equity owners.
3.03 DISTRIBUTION OF NET SALE OR REFINANCING PROCEEDS
a. Net Sale or Refinancing Proceeds received by the Company, to the
extent, and only to the extent, that the Investment Committee determines, in its
discretion, that such Net Sale or Refinancing Proceeds of the Company are not
required for operations of the Project Entity that relates to same and are
available for distribution to the Members, shall be distributed to, and
allocated between, the Members as follows:
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(1) First, to Investcorp until such time as such allocation
results in a distribution to Investcorp, which, together with all prior
distributions pursuant to this Agreement, results in a nine percent
(9%) internal rate of return compounded annually over the life of the
investment;
(2) Next, to Ramco until such time as such allocation results in
a distribution to Ramco, which, together with all prior distributions
pursuant to this Agreement, results in a nine percent (9%) internal
rate of return compounded annually over the life of the investment;
(3) Next, seventy-five percent (75%) to Investcorp and
twenty-five percent (25%) to Ramco until such time as such allocation
to Investcorp results in a distribution to Investcorp, which, together
with all prior distributions pursuant to this Agreement, results in a
fifteen percent (15%) internal rate of return compounded annually over
the life of the investment; and
(4) Next, sixty percent (60%) to Investcorp and forty percent
(40%) to Ramco.
If additional capital contributions are made to the Company after all
capital is returned under Section 3.03a(3) hereof, then such new capital,
together with additional amounts as required pursuant to Sections 3.03a(1)-(3)
hereof must be returned prior to any distribution being made pursuant to this
Section 3.03a(4).
For purposes hereof, (i) the internal rate of return shall be
calculated in the manner set forth on Exhibit B attached hereto, and (ii) the
asset management fee paid to Investcorp pursuant to Section 4.08b hereof shall
be considered part of the distributions made to Investcorp for purposes of
computing its internal rate of return hereunder.
The Members hereby acknowledge and agree that, notwithstanding anything
contained in this Section 3.03a to the contrary, Investcorp shall be entitled,
upon Ramco's exercise of a Purchase Option or Investcorp's exercise of a Put
Option, to receive the amount provided for in Section 4.09c or Section 9.03
hereof for the Shopping Center in question (taking into account all
distributions and fees previously made to Investcorp [except for expense
reimbursements] which derived from such Shopping Center).
Notwithstanding the foregoing, if any Member shall have made a loan to
the other Member pursuant to Section 2.03 hereof, then any distributions to be
made to the borrowing Member hereunder shall instead be made to the lending
Member until such time as all principal and interest due and owing under such
loan has been paid in full.
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b. As used in this Agreement, "Net Sale or Refinancing Proceeds" means
all cash received by the Company from any Project Entity or from the sale of
such Project Entity other than amounts governed by Section 3.02 hereof,
including, without limitation, (i) the cash received by the Company from each
Project Entity as a result of the distribution by such Project Entity of Project
Entity Net Sale or Refinancing Proceeds, and (ii) the net proceeds of the sale
or other disposition of the Company's interest in any Project Entity or portion
thereof or a financing or refinancing of any loan secured by such interest,
after deducting therefrom any accounts payable owing by such Project Entity,
including expenses and fees, and after deducting therefrom the expenses of such
sale or other disposition and the portion of such proceeds utilized to discharge
any indebtedness secured by such property and asset and any reserves established
by the Investment Committee.
c. "Project Entity Net Sale or Refinancing Proceeds" means the proceeds
of :
(1) the sale or other disposition of all or substantially all
of the property or assets of each Project Entity or a financing or
refinancing of any loan secured by such property or assets, less any
accounts payable owing by such Project Entity, including expenses and
fees, and after deducting therefrom the expenses of such sale or
disposition and less the portion of such proceeds utilized to discharge
any indebtedness secured by such property or assets;
(2) the refinancing of any mortgage loan secured by any property
or asset of each Project Entity, or the refinancing of any other
indebtedness of each Project Entity, less the expenses of such
refinancing and less the portion of such proceeds utilized to discharge
any indebtedness of Project Entity; and
(3) any policy or policies of insurance or any condemnation
proceeds, less the portion of such proceeds utilized to discharge any
indebtedness secured by such property or asset and less the portion of
such proceeds utilized for the repair, replacement or reconstruction of
such property or asset or related improvements;
provided, however, "Project Entity Net Sale or Refinancing Proceeds" shall not
include any such proceeds which, because of the relatively minor amount involved
(an amount not in excess of One Hundred Thousand Dollars [$100,000.00]), or for
other reasons, the Investment Committee determines are more properly treated as
"Cash Receipts" (as defined above) than "Project Entity Net Sale or Refinancing
Proceeds."
d. The Members hereby acknowledge that it is their intention upon
receipt of Project Entity Net Sale Proceeds to distribute the maximum amount of
such Project Entity Net Sale Proceeds as if the asset in question that was sold
was the only asset of the Company.
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e. The provisions of this Section 3.03 are subject in all respects to
the provisions of Article VIII hereof. To the extent that any of the provisions
of this Section 3.03 are inconsistent with any of the provisions of Article VIII
hereof, the provisions of Article VIII hereof shall apply and govern and
control.
3.04 APPLICABILITY
The Members hereby acknowledge and agree that the provisions of this
Article III are subject to the provisions of Sections 9.02 and 9.16 herein.
ARTICLE IV
MEETINGS OF MEMBERS AND RELATED MATTERS
4.01 ANNUAL MEETINGS
An annual meeting of the Members for the election of members to the
Investment Committee and for the transaction of such other business as may
properly come before such meeting shall be held at such place, either within or
without the State of Michigan, and at such time and date as the Members, by
resolution, shall determine. If such a time and date is not so determined, the
annual meeting of the Members shall be held at the Company's principal office in
the State of Michigan, on the fourth Tuesday in March of each year, if not a
legal holiday, and if a legal holiday, then on the next business day following.
The Members acknowledge that the sole power of the Members shall be to elect the
members of the Investment Committee and that no other actions may be taken by
the Members at the annual meeting or any other meeting, except that the Members
may elect to dissolve the Investment Committee by a unanimous vote of the
Members. At all meetings of the Members, the presence in person or by proxy of
all Members shall be necessary for a quorum. The members of the Investment
Committee shall be elected in accordance with Section 5.03 hereof.
4.02 REIMBURSEMENT FOR COSTS AND EXPENSES
The Members hereby agree that each Member and Affiliate of each Member
shall be reimbursed by the Company for all third party reasonable costs and
expenses incurred by them for or on behalf of the Company. Anything contained in
this Agreement to the contrary, travel, entertainment, meals and lodging
expenses incurred by any Member or any Affiliate of any Member with respect to
the acquisition of a Shopping Center are not reimbursable.
4.03 EXCLUSIVITY PROVISIONS
a. Until the earlier of (i) the Company owning Shopping Centers whose
aggregate acquisition costs are at least equal to One Hundred Twenty-five
Million Dollars ($125,000,000.00) (including the values ascribed to the Initial
Acquisition
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Properties), (ii) the Investment Termination Date, or (iii) the Company
terminates, all opportunities presented to Ramco involving the acquisition of
any Shopping Centers in the Midwest, Mid-Atlantic and Northeast United States,
or any opportunity involving the participation in any transactions designed to
acquire any Shopping Centers in the Midwest, Mid-Atlantic and Northeast United
States, shall first be presented exclusively to the Company except for the
following: (i) transactions involving an UPREIT transaction (i.e., a transaction
whereby property is contributed to a limited partnership or other type of
operating entity, and the general partner or operator, and majority owner of the
interests in such limited partnership or entity, is a real estate investment
trust); (ii) transactions involving undeveloped property acquired for the
purpose of development of a Shopping Center by Ramco or any Affiliate of Ramco;
and (iii) transactions of up to Twenty-five Million Dollars ($25,000,000.00)
which are effectuated to cause a Section 1031 like kind exchange pursuant to
applicable provisions of the Code. At the earlier of the Company owning Shopping
Centers whose aggregate acquisition costs are at least equal to One Hundred
Twenty-five Million Dollars ($125,000,000.00) (including the values ascribed to
the Initial Acquisition Properties), the Investment Termination Date, or the
Company terminates, Ramco and its Affiliates shall have the unrestricted right
to acquire any Shopping Center in the Midwest, Mid-Atlantic and Northeast United
States. In connection herewith, Ramco agrees that, prior to the Investment
Termination Date, it shall use reasonable efforts to identify and present to the
Investment Committee Shopping Centers that meet the Target Investment Criteria
and are to be presented pursuant to the provisions of this Section 4.05a.
b. Ramco hereby agrees that if Ramco or one of its Affiliates comes
upon, or is presented with, an opportunity to acquire a Shopping Center, Ramco
shall notify the Investment Committee of the New Opportunity (the "New
Opportunity Notice"). The New Opportunity Notice shall contain, to the extent
possible, such information as shall be reasonably necessary to evaluate the new
opportunity including, without limitation all economic terms and such other
information as the Investment Committee shall deem to be reasonably necessary.
The Investment Committee shall have ten (10) days from the date of its receipt
of the New Opportunity Notice and all of such information (the "Consideration
Period") to make a good faith determination as to whether the New Opportunity
should be pursued by the Company. If, on or before the end of the Consideration
Period, the new opportunity is rejected by the Investment Committee, then Ramco
shall be free to pursue the New Opportunity but only on substantially the same
terms presented to the Investment Committee and only if Ramco did not vote to
reject such new opportunity and neither the Company nor any other Member shall
have any rights or claims on account of such activities, and the New Opportunity
shall conclusively be considered not to be prohibited by Section 4.02a
regardless of the manner in which it ultimately performs. If, on or before the
end of the Consideration Period, the Investment Committee (and provided that the
acquisition of such New Opportunity must be consummated within one hundred
twenty [120] days of such rejection or the New Opportunity must again be
presented to the Investment
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Committee) concludes that the new opportunity is one that should be pursued,
then and in that event, (i) the provisions of Sections 4.02c, d, e, f and g
hereof shall govern and control and (ii) any and all reasonable fees charged and
costs incurred by individuals or entities not Affiliates of a Member ("Third
Party Costs") of any nature whatsoever incurred thereafter in connection with
such New Opportunity shall be a direct obligation of the Company.
c. If the Investment Committee approves the New Opportunity in
accordance with Section 4.02b above, the Investment Committee shall have the
right, at any time commencing upon its initial approval to negotiate and execute
a purchase agreement to be entered into by a Project Entity to acquire the
Target Investment before the expiration of the due diligence period provided for
in such purchase agreement (the "Due Diligence Period") as same may be extended
by the parties thereto. All the documents and agreements pursuant to which the
Company or the Project Entity is acquiring the Target Investment must be
approved by the Investment Committee. The Investment Committee may, at any time
during the Due Diligence Period, obtain any additional information it deems
necessary to evaluate the Target Investment.
d. The failure of the Investment Committee to approve moving forward
with the acquisition of the Target Investment on or before the termination of
the Due Diligence Period shall be deemed to be a decision by the Investment
Committee to not acquire the Target Investment. In the event the Investment
Committee decides that the Company or the Project Entity should acquire the
Target Investment, then the Investment Committee shall have prepared all other
necessary documents and agreements with respect to both the acquisition in
question and the formation of the Project Entity to be owned by the Company to
acquire the Target Investment.
e. The Members agree that if the decision is made not to acquire a
Target Investment because the representatives of Investcorp on the Investment
Committee voted no, but the representatives of Ramco on the Investment Committee
voted yes, then, and only in such an event, Ramco, or any Affiliate of Ramco,
may during the term of the Company pursue on its own the acquisition of such
Target Investment upon substantially the same terms as set forth in the purchase
and sale agreement. In the event Ramco ultimately acquires the Target
Investment, Ramco shall reimburse the Company for the costs of the Company's
investigation, all third party costs incurred and all legal costs incurred in
connection with deciding whether to acquire the Target Investment. The Members
agree that if the decision is made not to acquire a Target Investment because
the representatives of Ramco on the Investment Committee voted no, but the
representatives of Investcorp on the Investment Committee voted yes, then
Investcorp, or any Affiliate of Investcorp, may, and Ramco may not, during the
term of the Company pursue on its own the acquisition of such Target Investment
upon substantially the same terms as set forth in the purchase and sale
agreement. In the event Investcorp ultimately acquires the Target Investment,
Investcorp shall reimburse
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the Company for the costs of the Company's investigation, all third party
reasonable costs incurred and all reasonable legal costs incurred in connection
with deciding whether to acquire the Target Investment.
f. In the event Investcorp rejects more than five (5) acquisition
opportunities pursuant to the provisions of this Section 4.03, and each such
opportunity falls within the Target Investment Criteria, then and in that event,
notwithstanding anything contained in this Agreement to the contrary, the
provisions of this Section 4.03 shall become null and void and of no further
force or effect whatsoever.
g. Ramco agrees, even if the provisions of this Section 4.03 do not
apply, that until the fifth (5th) anniversary of the date of execution of this
Agreement in the event it is desirous to do an off balance sheet acquisition
joint venture wherein its partner would invest funds to acquire a Shopping
Center, it shall first provide Investcorp with the opportunity to participate in
such a joint venture. Ramco, under such circumstances, shall provide Investcorp
with written notice of the salient details of the arrangement which Ramco may
desire. Investcorp shall then have thirty (30) days to notify Ramco in writing
of its desire to so participate on the terms and conditions as set forth in
Ramco's notice. The failure of Investcorp to accept such an offer in writing
within the aforesaid thirty (30) day period shall be deemed a rejection of
Investcorp to so participate. Ramco shall thereafter be free to pursue such an
opportunity upon materially the same terms and conditions contained in the
notice and neither the Company nor Investcorp shall have any rights or claims on
account of such activities. If Ramco desires to accept an offer from a joint
venture partner on terms which are materially less beneficial to Ramco than as
set forth in the notice, Ramco shall present such terms to Investcorp and
Investcorp shall then have ten (10) days to notify Ramco in writing to so
participate on the terms and conditions as set forth in such notice. If
Investcorp accepts such an offer to participate, then Ramco and Investcorp shall
use all reasonable efforts to enter into a binding letter of intent to be
entered into within thirty (30) days of Investcorp's acceptance. Failure of
Ramco and Investcorp to finalize such a letter of intent within said thirty (30)
day period provided all parties were attempting in good faith to do so shall
enable Ramco to pursue such an opportunity and neither the Company nor
Investcorp shall have any rights or claims on account of such activities.
4.04 MANAGEMENT OF THE SHOPPING CENTER
The Investment Committee, on behalf of and at the expense of each
Project Entity, shall cause each Project Entity to retain Ramco Gershenson,
Inc., an Affiliate of Ramco ("RGI"), as the exclusive management and
administrative agent of each Shopping Center owned by each Project Entity. In
furtherance thereof, the Company, with respect to each Shopping Center it owns
and through the Project Entity that owns such Shopping Center, shall cause each
Project Entity to enter into a management agreement in the form attached hereto
as Exhibit C.
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4.05 LEASING ACTIVITIES
The Investment Committee, on behalf of and at the expense of each
Project Entity, shall cause each Project Entity to retain RGI, as the exclusive
leasing agent for each Shopping Center owned by the Company and in connection
therewith, shall cause each Project Entity to enter into a leasing agreement
with RGI in the form attached hereto as Exhibit D.
4.06 ACQUISITION FEES
The Company shall pay Ramco or any Affiliate of Ramco an acquisition
fee for services rendered in connection with the Company's efforts to acquire
Shopping Centers. Each such fee shall be in an amount equal to one percent (1%)
of the purchase price in connection with the acquisition of each Shopping Center
by the Company including the Initial Acquisition Properties. In addition, all
Third Party Costs incurred by Ramco in connection with such acquisition
activities, including, without limitation, the amount of any fees and expenses
reimbursements paid to outside brokers (but only to the extent approved by the
Investment Committee), legal fees and all other consultants who perform or
consult with respect to such acquisition activities shall be a direct obligation
of the Company. Such fee shall be paid at the time of closing of each such
acquisition. Expense reimbursements shall be paid by Company as such invoices
are received.
4.07 DISPOSITION FEES
At the sole discretion of the Investment Committee, the Company may
cause each Project Entity to retain Ramco or any Affiliate of Ramco to
coordinate the disposition of each Shopping Center sold by the Company through a
Project Entity. If so retained, a disposition fee will be paid in consideration
for services rendered by Ramco with respect to the sale of each Shopping Center
owned by the Project Entity; provided, however, no such fee shall be paid to
Ramco or its designated Affiliate if Ramco or one of its Affiliates is the
purchaser. In addition, all Third Party Costs in connection with such
disposition activities, including, without limitation, the amount of any fees
and expense reimbursements paid to outside brokers, (but only to the extent
approved by the Investment Committee), legal fees and all other consultants who
perform or consult with respect to such disposition activities shall be a direct
obligation of the Company. Such fee shall be paid at the time of closing of each
such disposition. Expense reimbursements shall be paid at the time such invoices
are received.
4.08 ASSET MANAGEMENT FEES
a. The Company shall pay Ramco, who shall serve as asset manager, a
quarterly asset management fee in an amount equal to a pro rata share of
one-quarter of one percent (0.25%) per annum of the average book value of the
assets owned by
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the Company and Project Entities prior to depreciation as of the end of each
quarter of the Company. The asset management fee shall be used to pay overhead
and other expenses incurred by Ramco in connection with the business of the
Company, as well as to compensate Ramco for its participation in the
administration of the business of the Company. Such fee shall be paid quarterly
in arrears no later than the 15th day of the month following the last month of
the calendar quarter for which such fee is due and owing. Ramco, as asset
manager, shall act in good faith with respect to the Company in the best
interests of the Company as if Ramco was not affiliated with the property
manager or leasing manager. Asset Manager shall have the same rights and
obligations as Manager hereunder with respect to each asset being managed.
b. The Company shall pay Investcorp a quarterly asset management fee
equal to a pro rata share of one-tenth of one percent (0.10%) per annum of the
average book value of the assets owned by the Company and Project Entities prior
to depreciation as of the end of each quarter. Such fee shall be used to
compensate Investcorp for assisting the Company and each Project Entity with
acquisitions, dispositions and asset management. Such fee shall be paid
quarterly in arrears no later than the 15th day of the month following the last
month of the calendar quarter for which such fee is due and owing. The Members
hereby acknowledge and agree that the asset management fee being paid to
Investcorp pursuant to the provisions of this Section 4.08b shall be considered
a distribution to Investcorp for purposes of computing internal rates of return
to Investcorp under this Agreement.
4.09 OPTIONS TO PURCHASE SHOPPING CENTERS
a. The Company and Investcorp hereby grant to Ramco the option with
respect to each Shopping Center owned by a Project Entity, exercisable by Ramco
(or its designee) giving written notice to the Investment Committee at any time
prior to the date that is thirty-six (36) months after the closing of the
acquisition by the Company of the Shopping Center in question time being of the
essence (the "Option Period"), of its election to purchase such Shopping Center
at the price established, and in accordance with the terms and conditions set
forth, in this Section 4.09 (the "Purchase Option"); provided, however, that
Ramco may not exercise the Purchase Option with respect to any Shopping Center
to the extent that such exercise would occur during the first twelve (12) month
period commencing from the date of the closing of the Company's purchase of such
Shopping Center.
b. Ramco shall exercise any Purchase Option, if at all, by giving
written notice of its exercise of such Purchase Option to the Investment
Committee.
c. If Ramco exercises a Purchase Option, the purchase price for the
Shopping Center in question shall be the amount required to provide Investcorp
with a twenty percent (20%) internal rate of return compounded annually, after
payment of all
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expenses, on the capital invested by Investcorp in the Shopping Center in
question (taking into account all prior distributions and asset management fees
made to Investcorp with respect to this Shopping Center only).
d. The purchase price for each Shopping Center acquired by Ramco (or
its designee) pursuant to an exercise of a Purchase Option shall be payable in
cash at the closing as such shall occur in accordance with the provisions of
Section 4.09e hereof.
e. After the exercise of each Purchase Option by Ramco, Ramco shall
have thirty (30) days from the date of the exercise of such Purchase Option to
conduct its due diligence activities with respect to the Shopping Center in
question (it being understood that in no event shall Ramco be entitled to a
price adjustment). If Ramco elects to proceed to acquire such Shopping Center
after it has conducted it such due diligence activities, the purchase of the
Shopping Center in question shall be consummated on a date designated by Ramco,
which shall be within sixty (60) days of the exercise of such Purchase Option,
and Ramco shall give at least fifteen (15) days advance written notice of such
date to the Investment Committee. At the time Ramco exercises the Purchase
Option, it shall post a deposit in an amount equal to three percent (3%) of the
purchase price being paid for such Shopping Center but in no event in excess of
Five Hundred Thousand Dollars ($500,000.00). Such deposit shall be refundable
until the expiration of Ramco's due diligence period as provided for above in
this Section 4.09e and shall then be non-refundable. The Members hereby agree
that they shall use their reasonable efforts to minimize the costs involved in
such transaction, as well as to structure the purchase in such a way as to
minimize to the extent possible the negative income tax consequences that will
inure to Ramco (or its designee) and/or the Project Entity which owns the
Shopping Center as a result of such purchase; provided, that all transfer taxes
and other transactional and closing costs shall be paid in the manner
customarily provided for in the geographic area in which the Shopping Center is
located; provided, Ramco or its Affiliates shall cause all members of the
Investcorp Group (as hereinafter defined) to be fully released under all
guarantees related to the Shopping Center in question (including, without
limitation by prepaying any loan affecting or relating to the Shopping Center in
question) and shall pay any and all prepayment fees to any lender that are
charged as a result of such a sale of the Shopping Center in question. At the
closing, the Company shall transfer to Ramco (or its designee) without any
representations or warranties all rights, title and interest in and to the
Shopping Center (including, but not limited to, the real property underlying the
Shopping Center, all improvements on such real property, all easements and
rights such as air, mineral or gas, any tangible and intangible personal
property located on or about the Shopping Center, the use of appurtenant
easements and rights of way, all documents and reports relating to the Shopping
Center, all licenses, permits, consents, authorizations, approvals and waivers
issued by any federal, state and local governmental agencies and all other
related matters). In addition, the Company shall execute such instruments of
transfers with respect to the Shopping Center as shall be reasonably required by
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Ramco, and the Company shall provide such evidence of the absence of any liens,
security interests or claims of others as Ramco may reasonably request.
f. In the event Ramco exercises a Purchase Option, but elects during
the due diligence period not to purchase the Shopping Center in question, Ramco
shall forfeit its Purchase Option right with respect to such Shopping Center.
However, under such circumstances, Ramco shall not forfeit its Right of First
Offer with respect to such Shopping Center as set forth in Section 4.10 hereof.
g. Ramco's obligations hereunder shall survive Ramco's acquisition of
any such Shopping Center.
4.10 RIGHT OF FIRST OFFER IN RESPECT OF A SHOPPING CENTER
a. In the event (i) Ramco's Option Period with respect to a Shopping
Center has expired, and (ii) the Investment Committee has decided to sell such
Shopping Center, the Investment Committee shall notify Ramco of such a decision,
which notification shall include the price and economic terms upon which the
Company and/or the Project Entity would agree to sell the Shopping Center (the
"Offer"). Ramco shall have thirty (30) days after it receives the Offer from the
Investment Committee in which to elect to either accept or reject the Offer. In
the event that Ramco notifies the Investment Committee prior to the end of such
thirty (30) day period that Ramco desires to accept the Offer, then the Project
Entity which owns the Shopping Center shall sell the Shopping Center to Ramco
upon the price and economic terms set forth in the Offer. If Ramco does not
notify the Investment Committee that Ramco desires to accept such Offer within
such thirty (30) day period, then the Investment Committee shall have the right
to cause the Company and/or Project Entity to sell the Shopping Center to any
third party so long as the price and economic terms of such sale are not
materially less beneficial to the Company than those set forth in the Offer. An
agreement shall not be materially less beneficial to the Company if: (i) the
purchase price is equal to or greater than ninety-five percent (95%) of the
purchase price set forth in the Offer; (ii) the sale does not provide for seller
financing unless the seller financing has a term which matures not later than
the remaining term of this Agreement (assuming no extension pursuant to Section
1.05b hereof); and (iii) is otherwise on terms acceptable to a majority of the
members of the Investment Committee in its sole discretion. The Investment
Committee need not present any such third party offer to Ramco if such offer is
made within one hundred eighty (180) days of Ramco's rejection of the Offer and
such third party offer is on terms not materially less beneficial to the Project
Entity as those set forth in the Offer. The foregoing notwithstanding, in the
event that the Company has not executed an agreement to sell such Shopping
Center with a third party buyer on terms that are not materially less beneficial
to the Company in all material respects as set forth in the Offer within one
hundred eighty (180) days after the Company first markets such Shopping Center,
and the Company desires to
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continue to market the Shopping Center, the Company shall once again submit the
Offer to Ramco (or submit such other price and economic terms on which the
Investment Committee would desire to sell the Shopping Center) and Ramco shall
have thirty (30) days in which to either accept or reject the same. If Ramco
does not accept same within such thirty (30) day period, the Company may
continue to market the Shopping Center, provided that the Company again provides
Ramco with a right of first offer at the end of such one hundred eighty (180)
day period. Nothing contained in this paragraph shall require the Company to
market or sell the Shopping Center if the Investment Committee elects to retain
the Shopping Center.
b. If Ramco has not accepted an Offer from the Company in accordance
with Section 4.10a above, and either (i) the Investment Committee desires to
market the Shopping Center for a price and upon terms materially less beneficial
to the Company and/or the Project Entity (as such marketing plan may be amended
pursuant hereto) or (ii) if a third party offers to purchase the Shopping Center
and the Investment Committee wishes to accept such Offer and the price and/or
terms of such Offer are materially less beneficial to the Company and/or Project
Entity (as such Offer may be amended pursuant hereto), then prior to marketing
or accepting such Offer and executing a purchase agreement, as applicable, the
Investment Committee shall submit the revised terms of such proposed marketing
or Offer to Ramco, and Ramco shall have a period of ten (10) business days in
which to elect to either acquire the Shopping Center upon the same terms and
conditions as set forth in such new Offer upon which the Shopping Center shall
be marketed, as applicable, or to allow the Company to market the Property or
execute such purchase agreement with such third party buyer upon such new terms.
If Ramco elects to accept such revised Offer, then the Company and Ramco shall
execute a purchase agreement reflecting such terms, and shall proceed to closing
in accordance with the terms and conditions of such purchase agreement. If Ramco
does not elect to accept such revised Offer, then the Investment Committee may
market the Shopping Center on such terms and/or cause the Company to execute a
purchase agreement with such third party buyer reflecting such terms, and the
parties shall proceed to closing in accordance with the terms and conditions set
forth in such purchase agreement.
c. The Members hereby agree that, if Ramco purchases the Shopping
Center in question pursuant to this Section 4.10a hereof, they shall use their
reasonable efforts to minimize the costs involved in such transaction, as well
as to structure the purchase in such a way as to minimize, to the extent
possible, the negative income tax consequences that will inure to Ramco and/or
the Company and the Project Entity as a result of such purchase. In addition, at
the closing of the purchase of the Shopping Center by Ramco pursuant to the
provisions of this Section 4.10, the Company shall transfer to Ramco all rights,
title and interest in and to the Shopping Center (including, but not limited to,
the real property, all improvements on such real property, all easements and
rights such as air, mineral or gas, any tangible and intangible personal
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property located on or about the Shopping Center, the use of appurtenant
easements and rights of way, all documents and reports relating to the Shopping
Center, all licenses, permits, consents, authorizations, approvals and waivers
issued by any federal, state and local governmental agencies and all other
related matters). In addition, the Members shall execute such instruments of
transfer with respect to the Shopping Center as shall be reasonably required,
and the Company shall provide such evidence of the absence of any liens,
security interests or claims of others as Ramco may reasonably request. All
transfer taxes and related items shall be paid in the manner customarily
provided for in the geographic area in which the Shopping Center is located.
Ramco or its Affiliates shall cause all members of the Investcorp Group to be
fully released under all guarantees related to the Shopping Center in question
(including, without limitation, by prepaying any loan affecting or relating to
the Shopping Center in question). Anything contained in this Agreement to the
contrary, Ramco shall be responsible for the payment of any prepayment penalty
which is required as a result of the sale of the Shopping Center in question.
d. In the event Ramco exercises a Purchase Option with respect to a
Shopping Center and subsequently does not close on the purchase of such Shopping
Center, then and in that event, Ramco shall lose any nonrefundable deposit and
its right under this Section 4.10 to exercise its right of first offer with
respect to such Shopping Center.
4.11 COMPETING SHOPPING CENTERS
In the event Ramco manages or owns a competing Shopping Center (i.e. a
Shopping Center within two (2) miles of any Shopping Center owned by a Project
Entity) and Ramco or its Affiliates acts in bad faith with respect to the
Project Entity in order to benefit the leasing of space in the Shopping Center
not owned by the Project Entity then and in that event, the Investment Committee
shall advise Ramco that it is acting in bad faith and if Ramco continues to act
in bad faith following such notice or fails to cure such bad faith act, Ramco
shall lose its right to manage and lease space in the Shopping Center in
question owned by the Project Entity.
ARTICLE V
MANAGEMENT
5.01 MANAGEMENT AND RESPONSIBILITIES OF THE MANAGER
a. Except as otherwise provided in this Agreement, including, but not
limited to, the provisions of Section 5.02 hereof, the Company shall be managed
by a manager (the "Manager") approved by both Members. The Members hereby agree
that the initial Manager shall be Ramco. The Manager shall be permitted to
manage the date to day activities of the Company and each Project Entity
pursuant to the decisions and directives of the Investment Committee, and shall
have in respect of its management of
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the Company the designated powers of the Company and shall devote such time and
attention to the Company as is reasonably necessary for the proper management of
the Company and its properties. All material actions, decisions, determinations,
designations, directions, appointments, consents, approvals, selections, and the
like to be taken, made, or given by and/or with respect to the Company, its
business and its properties as well as management of all Company affairs, shall
in each and every case be made by the Manager, provided such actions, decisions,
determinations, designations, directions, appointments, consents, approvals,
selections, and the like have been expressly authorized by the Investment
Committee.
Subject to the foregoing, the Manager shall have the right, power and
authority, on behalf of and in the name of the Company, to carry out the
objectives and purposes of the Company and to perform all acts and enter into
and perform all contracts and other undertakings as directed by the Investment
Committee which it may deem necessary or advisable or incidental thereto.
Accordingly, the Manager, except as otherwise provided in this Agreement
(including, but not limited to, the provisions of Section 5.02. hereof), shall
have the right, power and authority, on behalf of the Company, without
limitation but subject to carrying out the purposes of the Company, to (i)
oversee the property management and leasing activities of the Shopping Centers,
(ii) compile monthly, quarterly or annual reports for submission to the
Investment Committee, as it so requires, (iii) prepare for submission to the
Investment Committee, annual budgets and business plans, entity tax returns and
related items, (iii) screen, review and underwrite potential acquisition
opportunities to the Investment Committee, (iv) negotiate, enter into, perform,
amend, and take all actions in respect of any and all agreements, instruments,
and documents and (v) perform all acts that a Manager may legally do pursuant to
the Act that are consistent with the terms of this Agreement and are designed to
carry out the purposes and business of the Company and the decisions and
directives of the Investment Committee.
The Manager, for as long as it is the Manager of the Company, shall
maintain appropriate fidelity bond insurance in an amount approved by the
Investment Committee.
b. Ramco hereby covenants that Dennis Gershenson (or a substitute
reasonably acceptable to Investcorp) shall remain President and Chief Executive
Officer of Ramco Gershenson Properties Trust, an Affiliate of Ramco, and Richard
Smith (or a substitute reasonably acceptable to Investcorp) shall remain Chief
Financial Officer of Ramco Gershenson Properties Trust, an Affiliate of Ramco,
throughout all applicable Option Periods. Ramco also covenants that Bruce
Gershenson (or a substitute reasonably acceptable to Investcorp) shall remain
Vice-President in charge of acquisitions of Ramco Gershenson Properties Trust,
an Affiliate of Ramco until the earlier of (i) such time as the Company, through
Project Entities, owns Shopping Centers, whose aggregate acquisition costs are
equal to or in excess of One Hundred
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Twenty-five Million Dollars ($125,000,000.00) (including the values ascribed to
the Initial Acquisition Properties) or (ii) the Investment Termination Date.
Ramco shall have one hundred eighty (180) days to cure an intentional breach of
the provisions of this paragraph and one (1) year cure an unintentional breach
of this paragraph. In the event the breaches described in the previous sentence
are not cured by Ramco within the time frames set forth therein, Ramco shall
forfeit its right to: (i) manage the Shopping Centers owned by Project Entities;
(ii) act as leasing agent for the lease of space in such Shopping Centers; and
(iii) act as asset manager of the Company, and Investcorp shall have the right
to designate its successor for such roles.
5.02 INVESTMENT COMMITTEE
a. The Company shall have an investment committee, (the "Investment
Committee") which shall have the right, power and authority, to make all
decisions on behalf of the Company and each Project Entity including, without
limitation, the following decisions (which decisions shall be decided by a
numerical majority of the members on the Investment Committee except as
specifically provided otherwise in Section 5.02b hereof):
(1) adopt and finalize an operating budget with respect to each
fiscal year of the Company and of each Project Entity in the forms of
operating budget, leasing plan, capital budget (if relevant) and
business plan (if one has been prepared) (collectively, the "Budget")
attached hereto as Exhibit E; change any provision of such a budget, or
otherwise conduct the business of each Project Entity in a manner
consistent with such a budget. Ramco, no later than November 15 of each
fiscal year, shall prepare, or cause to have prepared, and delivered to
the Investment Committee a proposed operating budget for the Company
and each Project Entity with respect to the next succeeding fiscal
year, which budgets, at a minimum, shall reflect projected revenues and
expenses on a monthly basis. The Investment Committee shall attempt to
approve such operating budgets for the next succeeding fiscal year no
later than December 15 of the current fiscal year; provided, however,
if four (4) out of five (5) of the members of the Investment Committee
cannot agree on an approved budget, the approved budget shall be the
budget for the previous year with expenses increased by five percent
(5%); which budget shall govern and control for the fiscal year in
question it being acknowledged that Ramco shall have the right to
allocate such increase among expense items within a given category of
expenses (but not among separate expense categories) in such budget as
Ramco may determine. If at the end of such fiscal year, the Members of
the Investment Committee still cannot agree on the approved Budget,
then the Investment Committee by a vote of three (3) out of the five
(5) members of the Investment Committee shall cause the Company to
cause the Project Entity to sell the Shopping Center in question to a
third-party that is not an Affiliate of
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either Member. Ramco shall prepare, or cause to be prepared, monthly
revenue and expenditure statements (including year to date and a
quarterly modified forecast for the entire year) reflecting, among
other things, budget variances, and shall have same delivered to the
Investment Committee by the last day of the month following the month
to which such statement relates. The provisions of this Section
5.02a(1) are subject, in all respects to the provisions of Sections
4.09 and 4.10 hereof;
(2) enter into a lease with respect to any Shopping Center
beyond the parameters set forth in this section. The Manager shall have
the right to enter into leases with respect to any Shopping Center
without the approval of the Investment Committee so long as such lease
is: (i) for less than ten thousand (10,000) square feet, and (ii) is on
economic terms contemplated by or better than those in the controlling
Budget, including rents, expense reimbursements, free rent periods,
tenant improvement allowances, and leasing commissions; (iii) is on the
standard form of lease approved by the Investment Committee for such
Shopping Center, subject to normal and customary modifications of such
form made in negotiating such lease with tenants; and (iv) has no
Tenant termination rights outside of casualty, condemnation, and/or
Landlord default. To the extent that a lease is subject to the approval
of the Investment Committee, any lease submitted to the Investment
Committee (which shall be submitted in writing) which is not rejected
by a majority vote of the Investment Committee within five (5) business
days after submission shall be deemed approved.
(3) undertake any capital expenditure at any Shopping Center;
provided, however, if such expenditure, either individually, or in the
aggregate, exceeds the approved budget for such Shopping Center by more
than One Hundred Thousand Dollars ($100,000.00), then such expenditure
shall require the unanimous consent of all of the members of the
Investment Committee before it can be made. Notwithstanding anything in
this Section 5.02a(3) to the contrary, if any capital expenditure is
required to remedy a condition that would jeopardize the physical
integrity of any Shopping Center or is an emergency, and such an
expenditure requires the consent of all of the members of the
Investment Committee, then any member of the Investment Committee can
demand that the Company obtain a report from a nationally recognized
structural engineering firm within forty-five (45) days stating whether
such condition jeopardizes the physical integrity of the Shopping
Center. If the report so provides, then the Investment Committee shall
be authorized to proceed to make such an expenditure and make a capital
call for same;
(4) sell any Shopping Center or any interest in any Shopping
Center after the expiration of the applicable Option Period (or earlier
as specifically provided for in this Agreement); provided, however,
this Section 5.02a(4) shall
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not be construed as obviating Ramco's right of first offer as set forth
in Section 4.10 hereof or Investcorp's rights under Section 9.03;
(5) dissolve the Company or any Project Entity after the
expiration of all applicable Option Periods;
(6) sell or transfer of all or substantially all of the assets
of the Company or any Project Entity after the expiration of all
applicable Option Periods;
(7) replace Ramco as the asset manager of a Project Entity
after either the (i) expiration of all applicable Option Periods, or
(ii) the failure to close by Ramco on the purchase of the Shopping
Center owned by such Project Entity after Ramco has exercised a
Purchase Option; or (iii) failure to fund a capital contribution as
required by the terms of this Agreement where such failure explicitly
allows for the termination of Ramco as Asset Manager; or (iv) the
fraud, gross negligence or bankruptcy of the Asset Manager or as
otherwise provided herein;
(8) remove Ramco as the Manager of the Company in the event of
a bankruptcy of Ramco, or in the event of a sale, merger, or change of
control of Ramco which violates the provisions of Section 5.01b hereof,
or an uncured breach of Section 5.02b hereof or the fraud or gross
negligence of Ramco;
(9) replace RGI as property manager and/or leasing agent of any
Shopping Center as permitted under this Agreement and the terms of the
applicable management and leasing agreements;
(10) approve and review any change to any property management
agreements, leasing contracts and/or service contracts in the forms
attached hereto as Exhibits which are entered into with Ramco or one of
its Affiliates after the purchase of a Shopping Center by the Company
and/or a Project Entity;
(11) determine the amount of reserves to be held by the Company
or any Project Entity prior to making distributions of Cash Flow,
distributable Project Entity Cash Flow, Net Sale or Refinancing
Proceeds or Project Entity Net Sale or Refinancing Proceeds;
(12) appoint and change any key service providers to the Company
or any Project Entity (including legal counsel and accountants to the
Company but only with respect to counsel used in connection with the
acquisition or sale of the Shopping Centers);
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(13) subject to the terms and conditions of this Agreement,
require additional capital contributions necessary or desirable to
carry out the obligations of the Company and any Project Entity, but
specifically excluding the decision to require additional capital
necessary to acquire a new property pursuant to Section 2.02b hereof
which requires the consent of four (4) of the five (5) members of the
Investment Committee as set forth in Section 5.02b(8) hereof; and
(14) approve any litigation that is: (i) not covered by
insurance, and (ii) reasonably anticipated to involve damages in excess
of Thirty-five Thousand Dollars ($35,000.00).
The authority of the Investment Committee as set forth above shall be
utilized in its sole discretion.
b. The Investment Committee shall have the right, power and authority
to make the following decisions on behalf of the Company and each Project
Entity, which decisions shall be made by the vote of four (4) out of the five
(5) members of the Investment Committee:
(1) acquire any Shopping Center or other asset (other than in
the ordinary course of business), and enter into, negotiate and include
agreements with respect thereto;
(2) enter into any lease for any Shopping Center proposed by
Investcorp or an Affiliate of Investcorp;
(3) borrow money, or incur any other debts or obligations
outside of the Company's or a Project Entity's ordinary course of
business, other than those approved within a capital expenditure
budget;
(4) change the amount of, amend, modify or change the material
economic terms of, extend the time for the payment of, or retire,
discharge or refinance any indebtedness or obligation of the Company or
a Project Entity referred to in (1) above; or change the amount or
value of, modify or change the nature or type of, or make any other
material economic modifications or changes with respect to, any
security granted or collateral given for any Company or Project Entity
indebtedness or obligations referred to in (1) above; or amend, modify
or change the material economic terms of any agreement, instrument or
document with respect to any such security or collateral;
(5) enter into any agreement or arrangement with, engage in any
transaction with, or pay any fees or other amounts to, any Affiliate of
Investcorp, except either (i) to the extent expressly authorized under
this Agreement, or (ii)
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with respect to agreements, arrangements or transactions that are at
customary market rates based on similar fees or other amounts and other
terms for comparable transactions negotiated on an arms-length bases;
(6) extend the Investment Termination Date;
(7) extend the term of the Company or any Project Entity;
(8) require additional capital contributions from the Members
pursuant to Section 2.02b hereof;
(9) change the purposes for which the Company or any Project
Entity has been formed;
(10) take any actions outside the ordinary course of the
Company's or any Project Entity's business not reserved to the majority
of the Investment Committee;
(11) engage in any activity inconsistent with the purposes of
the Company or any Project Entity; and
(12) enter into any agreement with any Member or any Affiliate
of any Member except as specifically authorized hereunder.
In the event Ramco exercises a Purchase Option with respect to a
Shopping Center and thereafter fails to close on such a purchase (for reasons
other than force majeure), or if Ramco does not contribute capital as required
under Section 2.02b hereof or if there is an uncured breach of Section 4.11 or
5.01b hereof, then and in that event, with respect to decisions concerning such
Shopping Center only, the Investment Committee shall decide such "Unanimous
Business Decisions" under this Section 5.02b impacting such Shopping Center by
the vote of a numerical majority of its members.
5.03 NUMBER; ELECTION; TERM OF OFFICE; AND QUALIFICATIONS
The number of members of the Investment Company shall be five (5),
consisting of three (3) members appointed by Investcorp and two (2) members
appointed by Ramco.
5.04 RESIGNATION
Any member of the Investment Committee may resign at any time by giving
written notice to the Investment Committee. Unless otherwise specified therein,
such resignation shall take effect on the date of receipt thereof.
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5.05 VACANCIES
If any vacancy shall occur in the Investment Committee for any reason,
such vacancy may be filled by the Member who appointed such Investment Committee
Member.
5.06 ANNUAL AND REGULAR MEETINGS
Regular quarterly meetings of the Investment Committee shall be held
for the transaction of business as may properly come before the meeting. The
time, place and purposes of such meeting shall be stated as set forth in Section
5.07 hereof, unless such notice is waived.
5.07 SPECIAL MEETINGS
A special meeting of the Investment Committee may be called at any time
on the written request of at least two (2) of the members of the Investment
Committee then in office, and shall be held at such time and place, within or
without the State of Michigan, (or by telephone at any Member's election), as
may be fixed by such members of the Investment Committee in such request,
provided that all members of the Investment Committee are notified as to when
such meeting shall occur and two (2) alternative times are proposed for any such
meeting.
The Members agree that there cannot be more than two (2) special
meetings per week without the affirmative vote of four (4) out of the five (5)
members of the Investment Committee.
5.08 NOTICE OF MEETINGS
Notice of the time, place and purposes of each meeting of the
Investment Committee shall be sent to each member of the Investment Committee by
mail, addressed to him at the address as it appears on the records of the
Company, or telephoned or delivered to him personally, at least thirty (30) days
before the meeting is to be held. Any notice may be waived or provided in this
Article V.
5.09 QUORUM
At all meetings of the Investment Committee, the presence in person, by
phone or by proxy of a sufficient number of members necessary to approve the
business at hand (i.e., three [3] Members for matters under Section 5.02a; four
[4] Members for matters under Section 5.02b) shall be necessary and sufficient
to constitute a quorum.
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5.10 REIMBURSEMENT
The members of the Investment Committee shall not receive any
compensation for their services.
5.11 PARTICIPATION IN A MEETING BY CONFERENCE TELEPHONE
Any member of the Investment Committee may participate in a meeting of
the Investment Committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this Section
5.10 shall constitute presence in person at such meeting within the meaning of
Section 5.08 hereof, or for any other purpose.
5.12 WRITTEN CONSENT IN LIEU OF MEETING
Any action required or permitted to be taken at any meeting of the
Investment Committee may be taken without a meeting if a written consent thereto
shall be signed by each member of the Investment Committee, and such written
consent or consents shall be filed with the minutes or proceedings of the
Investment Committee.
5.13 MINUTES
Ramco shall prepare written minutes or proceedings of all Investment
Committee meetings, including all actions taken, and promptly mail such minutes
or proceedings to all members of the Investment Committee.
ARTICLE VI
BOOKS, RECORDS AND ACCOUNTING
6.01 FISCAL YEAR ACCOUNTING
The Company shall operate on a calendar fiscal year. The Company shall
use the accrual method of accounting, or such other fiscal year or method of
accounting, as may be selected by Investment Committee.
6.02 BOOKS AND RECORDS
a. The Company shall at all times maintain all documentary materials
required by the Act and proper and complete and accurate books and records of
the Company's business and affairs, as well as such other books and records as
Ramco deems appropriate. Such books and records shall be kept at the Company's
principal office.
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b. All such materials shall be available for inspection and copying, at
a Member's expense, by each Member or its designated representatives, during
ordinary business hours.
6.03 TAX MATTERS PARTNER
The Manager shall be the Tax Matters Partner and shall continue to act
as such unless and until it resigns or is removed by the terms of this
Agreement. "Tax Matters Partner" has the meaning set forth in Section 6231(a)(7)
of the Code. The Tax Matters Partner shall have all rights and responsibilities
of that position described in Sections 6221 through 6234 of the Code.
Notwithstanding the foregoing, unless the Tax Matters Partner has obtained the
prior approval of Investcorp, the Tax Matters Partners shall not have the power
or authority to (i) choose any judicial, administrative or other forum in which
to contest or litigate any position or action taken by any taxing authority
against or with respect to the Company (or any Member with respect to the
Company), or (ii) agree to any extension of any period within which any taxing
authority must take action against or with respect to the Company (or any Member
with respect to the Company). The Tax Matters Partner shall give prompt notice
to the Members of any notices with respect to the Company received by the Tax
Matters Partner from any taxing authority. Each Member agrees that, upon receipt
of such notice from the Tax Matters Partner, it shall respond promptly so the
Tax Matters Partner may act accordingly with respect to the issue at hand.
Notwithstanding the foregoing, the Tax Matters Partner shall make a Section
7.04(c) election if so directed by Investcorp.
6.04 TAX INFORMATION AND FINANCIAL STATEMENTS
Ramco shall, at Ramco's expense, prepare, or cause to be prepared, and
distributed to the Members, (i) within thirty (30) days after the end of each
calendar month, monthly unaudited financial statements, including an income
statement, cash flow statement and balance sheet for each Project Entity, with
respect to the preceding calendar month, (ii) within ninety (90) days after the
end of each calendar year, the Company's tax return with respect to such
calendar year, and all information relating to the Company that is necessary for
the preparation of the Member's federal and state income tax returns with
respect to such calendar year, and (iii) within ninety (90) days after the end
of each calendar years, a consolidated financial statement for all of the
Project Entities. In the event the Investment Committee or either Member desires
to have any statement provided for in this Section 6.04 audited, then and in
that event, the Investment Committee or such Member shall have the right to
cause such statement to be audited, provided that the sole expense of such audit
is borne by the Company, if requested by the Investment Committee, or otherwise,
by the Member making such a request.
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ARTICLE VII
ASSIGNMENT OF MEMBERSHIP INTERESTS,
WITHDRAWAL OF A MEMBER AND RELATED MATTERS
7.01 ASSIGNMENT
a. Except as otherwise expressly permitted herein, no Member shall have
the right to assign its Membership Interest, or any portion thereof, or to have
an assignee of its Membership Interest or any portion thereof, admitted to the
Company as a member in respect thereof, without the prior written consent of the
other Member. Notwithstanding anything contained in this Section 7.01 to the
contrary, each Member shall have the right, without obtaining the prior written
consent of the other Member, to assign its Membership Interest or any portion
thereof, and to have such assignee of its Membership Interest or portion
thereof, admitted to the Company as a Member in respect thereof, as follows: (i)
Ramco may assign all or any portion of its Membership Interest to any entity
that is Controlled By Ramco, and (ii) Investcorp may assign all or any portion
of its Membership Interest to any entity that is Controlled By Investcorp or its
Affiliates.
b. For purposes hereof, the term (i) "assignment" means any sale,
conveyance, transfer, assignment, mortgage, pledge, encumbrance, hypothecation
or other alienation or disposition of any type or kind, (ii) "assign" means the
making of an assignment, (iii) "assignor" means a person who makes an assignment
and (iv) "assignee" means a person to whom or for whose benefit an assignment is
made.
7.02 SUBSTITUTION OF MEMBERS
If there is an assignment of a Member's Membership Interest or portion
thereof that complies with the provisions of Section 7.01a hereof, the assignee
shall only be admitted to the Company as a Member (in addition to the consent
requirement for such admission as Member pursuant to Section 7.01a hereof), and
the assignor shall cease to be a Member in respect of such Membership Interest
or portion thereof, if and when all of the following requirements have been
satisfied:
(i) such instruments as may be required by the Act or other
applicable law or to effect the continuation of the Company and the
Company's ownership of its properties are executed and delivered and/or
filed;
(ii) the instrument of assignment binds the assignee to all of
the terms and conditions of this Agreement as if the assignee were a
signatory party hereto and does not release the assignor from any
liability or obligation, accruing prior to the date of the assignment,
of or in respect of the Membership Interest which is the subject of the
assignment;
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(iii) the instrument of assignment is manually signed by the
assignee and assignor and is otherwise reasonably acceptable in form
and substance to the other Member, and such Member has consented to
such assignment (which consent may be given or withheld in the exercise
of its sole discretion);
(iv) if there is more than a single assignee (or successor in
interest), the assignees or successors shall have complied with the
provisions of Section 7.07 hereof; and
(v) such assignment shall not be prohibited by, or cause a
breach of, or cause events unrelated to the identity of the assignee
but not the nature of the assignee (e.g., tax-exempt status) that are
unacceptable to the other Member in the exercise of its reasonable
discretion to occur pursuant to, any agreement or understanding by
which the assignor or the assignee or any properties of the Company or
the Company itself is bound or affected.
An assignee of a Membership Interest pursuant to an assignment
permitted in this Agreement may, subject to the provisions of this Article VII,
be admitted as a Member in the Company in the place and stead of the assignor
Member in respect of the Membership Interest acquired from the assignor Member
and shall have all of the rights, powers, obligations, and liabilities, and
shall be subject to all of the restrictions, of the assignor Member, including,
without limitation, but without release of the assignor Member, the liability of
the assignor Member for any existing unperformed obligations of the assignor
Member. Each of the Members, on behalf of itself and its permitted successors
and assigns, hereby agrees and consents to the admission of any such additional
members as herein provided.
7.03 TRANSFERS OF INTERESTS IN MEMBERS
Each Member shall have the right, without the consent of the other
Member, to assign, transfer, convey, or create new interests in such Member; or
to participate in a merger or other similar transaction. In the event of a
transfer of substantially all of the interests in a Member to an unaffiliated
entity, or in the event of a merger, the surviving entity shall have all of the
rights and obligations of its predecessor as a Member of the Company and, such
successor shall have the right, if it so elects, to appoint members of the
Investment Committee to replace the members of the Investment Committee
appointed by its successor. In the event that any such transfer results in a
violation of the provisions of Section 5.01b hereof, the provisions of Section
5.01b shall be applicable.
7.04 REFERENCES TO "MEMBER" AND "MEMBERS" IN THE EVENT OF SUCCESSORS
In the event that either Ramco or Investcorp's Interest is held by one
or more successors to such Member, (exclusive, however, of additional Members
admitted to
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the Company pursuant to the provisions of this Agreement), references in this
Agreement to "Member" and "Members" shall refer, as applicable and except as
otherwise provided herein, to the collective Membership Interests of all
successors to the Membership Interest of Ramco or Investcorp, as the case may
be; and all decisions, consents, approvals, determinations, actions, and
selections of the Members (to the extent any such decisions, consents,
approvals, determinations, actions, and selections of the Members are provided
for in this Agreement) and the Company shall, as herein provided but subject to
the provisions of Article VII hereof, require the decision, consent, approval,
determination, action, or selection of Ramco or an authorized representative of
all of the successors to the Membership Interest of Ramco (acting in the manner
provided in Section 7.07 hereof) and/or Investcorp or an authorized
representative of all of the successors to the Membership Interest of Investcorp
(acting in the manner provided in Section 7.07 hereof), as provided for in this
Agreement.
7.05 PROHIBITION ON WITHDRAWAL
a. Except in connection with an assignment of its entire or any portion
of its Membership Interest in the Company and the admission of the assignee to
the Company pursuant to, and in accordance with the provisions of this
Agreement, no Member may withdraw from the Company prior to dissolution and
winding up. If either Member shall withdraw from the Company in violation of the
preceding sentence, then:
(1) Unless the remaining Member elects otherwise, the remaining
Member shall, either alone or with others, continue the business of the
Company and control the Investment Committee;
(2) The withdrawn Member shall be liable to the remaining Member
and to the Company for all damages resulting from the withdrawn
Member's withdrawal;
(3) The withdrawn Member shall cease to be a member of the
Company and shall cease to have any interest in, or any rights with
respect to, the Company, any Shopping Center and any other property or
asset of the Company or the business of the Company, and anything
contained in this Agreement to the contrary notwithstanding, the
withdrawn Member shall have no right to receive any distributions or
other amounts from the Company or the remaining Member under any
Section of this Agreement; however, the withdrawn Member shall
nevertheless remain liable for all of its existing unperformed
obligations to, or with respect to, the Company and/or the remaining
Member and for its share of all existing liabilities of the company to
third parties (to the extent, if at all, such Member was so liable);
and
(4) The withdrawn Member shall be deemed to have renounced its
Membership Interest and to have waived any right that it would
otherwise have
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under this Agreement, the Act or otherwise to demand or receive any
amounts from the Company or the remaining Member in respect of the
value of its Membership Interest or otherwise, or to be indemnified
against present or future Company liabilities, and the Company and the
remaining Member shall have no obligation whatsoever to pay the
withdrawn Member the value of its Membership Interest or any other
amount or to indemnify it against any present or future Membership
liabilities.
b. If (and only if) the remaining Member elects not to continue the
business of the Company, the Company shall be wound up and liquidated pursuant
to the provisions of Article VIII hereof.
7.06 OCCURRENCE OF A DISABILITY EVENT WITH RESPECT TO A MEMBER
In the event of the occurrence of a Disability Event with respect to a
Member, the Company shall dissolve; unless, within ninety (90) days thereafter,
the remaining Member agrees to continue the business and affairs of the Company.
7.07 SINGLE REPRESENTATIVE TO ACT ON BEHALF OF SUCCESSORS
In the event that Ramco's or Investcorp's Membership Interest is, at
any time during the term of this Agreement (including any period of dissolution
and winding up of the Company), held by more than one individual or entity
(except for additional Members admitted to the Company pursuant to the
provisions of this Agreement), then all of the individuals or entities holding
Ramco's or Investcorp's, as the case may be, original Membership Interest shall
forthwith, but in any event within thirty (30) days after the date on which the
Membership Interest of such Member is held by more than a single individual or
entity, appoint one or more individuals as their collective authorized
representative(s), who shall each have the power and authority, acting alone, to
represent and bind and act on behalf of all of the Members so joined together
and represented (i.e., all of the successors to the Membership Interest of Ramco
or the Investcorp, as the case may be) in connection with all matters relating
to this Agreement or the Company that are specifically controlled by the Members
and not the Investment Committee. An authorized representative designated as
required herein shall act at the direction of that Member or those Members,
represented by such authorized representative, who at the relevant time holds or
collectively hold, as the case may be, an Applicable Percentage which is in
excess of fifty percent (50%) of the total Applicable Percentages held by all
the Members represented by such authorized representative.
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7.08 SUCCESSION BY INDIVIDUALS TO MEMBERSHIP INTERESTS OF MEMBERS
In the event that any individual succeeds to the interest of any Member
in accordance with the terms of this Agreement, then the interest of such
individual Member in the Company, subject to the provisions of Section 7.02
hereof, may be:
(i) Assigned or disposed of by will or intestacy to or for the
benefit of any member or members of the deceased Member's Immediate
Family; or
(ii) Assigned during his lifetime or at his death to a Family
Trust for such individual.
ARTICLE VIII
DISSOLUTION AND WINDING UP;
CONTINUATION OF BUSINESS
8.01 WINDING UP AND LIQUIDATION OF THE COMPANY
Upon dissolution, the Company shall cease carrying on its business and
affairs and shall commence the winding up of the Company's business and affairs
and the liquidation of its assets (subject, in all respects, to the provisions
of Sections 4.19 and 4.20 hereof). Upon the winding up of the Company, the
assets of the Company shall be distributed first to creditors to the extent
permitted by law, in satisfaction of the Company's debts, liabilities and
obligations, then for contingent liabilities determined by the Investment
Committee, and then to Members in accordance with their Capital Account
balances, determined after the allocation of all Profits, Losses and items of
income, gain, expense or loss. Such proceeds shall be paid to such Members
within ninety (90) days after the date of winding up.
8.02 CERTIFICATE OF DISSOLUTION
After the affairs of the Company have been wound up and the Company
terminated, a certificate of dissolution shall be executed and filed in the
office of the Secretary of State for the State of Delaware.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01 INDEMNIFICATION
a. No Member nor any Designated Representative (each an "Indemnified
Person") shall be liable, responsible or accountable in damages or otherwise to
the Company or to any other Indemnified Person for (a) any act performed within
the scope of the authority conferred on such Indemnified Person by this
Agreement except for the
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gross negligence, willful misconduct, fraud or bad faith, of such Indemnified
Person in carrying out its obligations hereunder, (b) the Indemnified Person's
failure or refusal to perform any act, except those expressly required by or
pursuant to the terms of this Agreement, (c) the Indemnified Person's
performance of, or failure to perform, any act on the reasonable reliance on
advice of legal counsel to the Company, or (d) the negligence, dishonesty or bad
faith of any agent, consultant or broker of the Company selected, engaged or
retained and monitored with reasonable care.
b. In any threatened, pending or completed action, suit or proceeding,
each Indemnified Person shall be fully protected and indemnified and held
harmless by the Company against all liabilities, obligations, claims, losses,
damages, penalties, actions, judgments, suits, proceedings, costs expenses and
disbursements of any kind or nature whatsoever (including, without limitation,
reasonable attorneys' fees, costs of investigation, fines, judgments and amounts
paid in settlement, actually incurred by the Indemnified Person in connection
with such action, suit or proceeding) by virtue of its status as a Member or
Designated Representative, as the case may be, or with respect to any action or
omission taken or suffered in good faith, other than liabilities and losses
resulting from the gross negligence, willful misconduct, fraud or bad faith of
the Indemnified Person. The indemnification provided by this Section 9.01b shall
be recoverable only out of the assets of the Company, and no Member shall have
any personal liability on account thereof or be required to make any Capital
Contributions for the sole purpose of satisfying such indemnification
obligation. The Investment Committee shall have the right to cause the Company
to obtain insurance to provide for coverage for an Indemnified Person to the
extent that such coverage is permitted under this Section 9.01.
9.02 CONTRIBUTION AMOUNT/CROSS INDEMNITY
a. During the term of this Agreement Ramco or its affiliates (the
"Ramco Group") or Investcorp, or its affiliates (the "Investcorp Group"),
(together with the Ramco Group, the "Guarantor Groups") may be required to
deliver to lenders or other third parties guarantees or indemnification
agreements (the "Guarantees") with respect to certain obligations of the Company
or a Project Entity (each, a "Guaranteed Obligations"). Guaranteed Obligations
may not be incurred without the consent of both Guarantor Groups. The parties
hereto agree that in the event that any Guarantor Group (the "Guarantor") is
required to pay and pays any amount in connection with the Guaranteed
Obligations ("Guaranteed Obligations Amount Due") such other party (the
"Indemnitor") shall pay to the Guarantor such Indemnitor's "Proportionate Share"
(as hereinafter defined) of any Guaranteed Obligations Amount Due (less any
amounts already paid by such Indemnitor in respect of such Guaranteed
Obligations Amount Due (the "Indemnitor Reimbursement Amount"). For purposes of
this paragraph, the term Proportionate Share shall mean (i) with respect to the
Ramco Group, twenty-five percent (25%) and (ii) with respect to the Investcorp
Group, seventy-five percent (75%),
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it being understood and agreed that to the extent that the Ramco Group has
agreed to be responsible for any matter guaranteed [including, without
limitation, under Section 30(m) and Section 30(q) of the Initial Acquisition
Properties Contract for Chester Shopping Center] then the Proportionate Share
for the Ramco Group shall be one hundred percent (100%).
b. Subject to the further terms of this Section 9.03 but
notwithstanding any other Section of this Agreement to the contrary, each
Indemnitor shall indemnify and reimburse each Guarantor, within ten days after
written demand (but in no event shall such reimbursement be required to be made
prior to the date the Guarantor was required to make such payment in respect of
a Guaranteed Obligation) for an amount equal to such Indemnitor's Indemnitor
Reimbursement Amount, together with interest thereon at the rate set forth in
Section 2.03a(i) hereof, accruing from the date which is ten (10) days after the
date advanced until the date such Indemnitor Reimbursement Amount is repaid.
c. If any party to a Guaranty makes a demand on or institutes a legal
proceeding against one or more Guarantors for payment under any of the
Guarantees, then such Guarantor shall notify the other Guarantor(s) of such
demand or legal proceeding, which notice shall identify, among other things, the
amount and nature of such claim, and shall include copies of all relevant
documents, filings and notices. The Guarantor Groups s hall meet and negotiate
and discuss in good faith whether such Guarantor should settle such claim, or
dispute such claim in a proper legal forum. Each Guarantor Group agrees to pay,
upon demand, their respective Proportionate Share of all legal costs and
expenses incurred by the Guarantor in connection with disputing such claim (and
any such payments in respect of such dispute incurred by a Guarantor shall be
included within the definition of the term Indemnitor Reimbursement Amount;
provided that Ramco Group is the Guarantor it shall not settle any claim or take
any material legal action without the consent of the Investcorp Group (unless
the Ramco Group is willing to forego reimbursement from the Investcorp Group
with respect to such Indemnitor's Reimbursement Amount.
d. Notwithstanding anything contained herein to the contrary, in the
event any Indemnitor defaults in the payment of its obligations hereunder, the
Guarantor(s) on behalf of the Company, may (i) set off or deduct any amounts due
such Guarantor Group from amounts otherwise due such Guarantor Group under
Article III hereof and pay such amounts to the Guarantor until it has received
payment in full of the Indemnitor Reimbursement Amount, and (ii) institute legal
action to enforce such payment, and (iii) exercise the remedies set forth in
Section 2.03b hereof.
e. The agreement of the Guarantor Groups herein shall remain in full
force and effect until all Guaranteed Obligations under any of the Guarantees
shall be terminated and/or paid in full and the time during which any such
payment could be
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avoided as a preference or otherwise rescinded under the United States
Bankruptcy Code or any other similar Federal of state law related to solvency,
rehabilitation, liquidation or reorganization has expired (and shall survive any
termination, dissolution, winding up and similar events of the Company).
f. The obligations of any Indemnitor created hereby shall be
enforceable notwithstanding the insolvency, bankruptcy or dissolution of such
Indemnitor or any of the Indemnitee(s).
g. No failure or delay by any Guarantor in exercising any right or
remedy against an Indemnitor shall operate as a waiver of such right or remedy
or of any other right or remedy.
h. Ramco's obligations hereunder shall survive Ramco's acquisition of
any such Shopping Center.
9.03 PUT OPTION FOR INITIAL ACQUISITION PROPERTIES
a. Notwithstanding anything contained herein to the contrary, the
Company and Ramco hereby grant to Investcorp or its designee the option to
require Ramco to purchase (the "Put Option") for the Put Price, any Initial
Acquisition Property or the Company's interest in the Project Entity which owns
such Initial Acquisition Property at any time in which the Company and/or the
Project Entity owns any interest therein (the "Put Option Period") if
Investcorp, the Company or such Project Entity suffers a Detriment with respect
to the Property in question due to, or arising out of, or in connection with,
any Acquisition Issue.
For purposes of this Section 9.03, (x) the term "Detriment" shall
include, without limitation any cost, expense, fee, damage, liability, or
financial or economic loss (including, without limitation, a diminution in the
value of the Initial Acquisition Property in question) if the cause of such
condition is not solved (or solvable) by Ramco to Investcorp's reasonable
satisfaction within (A) any time period required by law or governmental
authorities (prior to the imposition of civil or criminal fines or penalties) or
any mortgagee (prior to the occurrence of an event of default), or (B) where a
time period is not otherwise provided, within a reasonable period of time;
(y) the term "Acquisition Issue" shall mean any of the following: (i)
with respect to Chester, (A) the lack of certificates of occupancy for the
Shopping Center or any tenant therein; (B) a violation of the current parking
variances; or (C) either (x) the failure of Ramco to comply with or otherwise
satisfy the provisions of Section 30(q) of the Initial Acquisition Properties
Contract for Chester or (y) if the remediation work required by Section 30(q)
(the "Remediation Work") is not covered by insurance in whole or in part or if
the insurance proceeds received or to be received by Ramco or the Project Entity
are insufficient to complete the Remediation Work, Ramco's failure to post
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the Deficiency Deposit when requested by Investcorp (it being understood and
agreed that Ramco should be solely responsible for the payment of any deductible
under any such insurance policy). The "Deficiency" shall mean the cost of the
Remediation Work as reasonably determined by Investcorp, less the insurance
proceeds received or to be received on account of the Remediation Work. The
"Deficiency Deposit" shall mean cash or cash equivalents in the amount of the
Deficiency to be deposited with a third party bank designated by Investcorp, to
secure Ramco's obligation to pay for and to pay for the Remediation Work; and
(ii) with respect to Rivertowne (A) Office Depot's encroachment on a twelve-
(12) foot sanitary sewer easement recorded in Official Records Book 8810, Page
521; (B) former "Olive Garden" encroachment on a thirty- (30) foot access
easement recorded in Official Records Book 8004, Page 590; (C) requirement for
platting by the County; or (D) all or a portion of the Master Lease premises
being subleased to a subtenant which Investcorp rejects or the Master Lease
being assigned to a person or entity which Investcorp rejects;
(z) the term "Put Price" shall mean, for the Initial Acquisition
Property in question, the amount required to provide Investcorp with an eighteen
percent (18%) internal rate of return to be determined in accordance with
Exhibit B compounded annually after payment of all expenses (including, without
limitation, transfer taxes, apportionments, brokerage fees and all other fees,
costs and expenses associated with the transfer of the Initial Acquisition
Property or interest in the Project Entity) on the capital invested by
Investcorp in such Initial Acquisition Property (taking into account all prior
distributions and asset management fees made to Investcorp with respect to this
Initial Acquisition Property only).
b. Investcorp shall exercise any Put Option, if at all, by giving
written notice (the "Put Notice") of its exercise of such Put Option to Ramco
and the Investment Committee at any time during the Put Option Period, which
notice shall set forth the Acquisition Issue in question, the Put Price and the
date of closing. Notwithstanding the foregoing, if Investcorp exercises a Put
Option due to the Acquisition Issue indicated in Section 9.03a(y)(ii)(D) above,
Investcorp must exercise the Put Option within six (6) months from the date that
such tenant or sublease is rejected in writing by Investcorp.
c. The Put Price for each Initial Acquisition Property to be acquired
by Ramco (or its designee) pursuant to an exercise of a Put Option shall be
payable by Ramco in cash at the closing. The sale and purchase of the Initial
Acquisition Property in question shall be consummated on a date designated by
Investcorp in the Put Notice which shall be no earlier than fifteen (15) days
and no later than sixty (60) days of the exercise of such Put Option. The
Members hereby agree that they shall use their reasonable efforts to minimize
the costs involved in such transaction, as well as to structure the sale in such
a way as to minimize to the extent possible the negative income tax consequences
that will inure to Investcorp and/or the Project Entity which owns the Initial
Acquisition Property as a result of such purchase; Ramco shall cause all
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members of the Investcorp Group to be fully released under all Guarantees
related to such property (including, without limitation, by prepaying any loan
affecting or relating to the Initial Acquisition Property in question) and shall
pay any and all prepayment fees, assumption fees and the like, to any lender
that are charged as result of such release, sale of the Initial Acquisition
Property or transfer of interest in the Project Entity in question. At the
closing, the Company or the Project Entity, as applicable, shall transfer to
Ramco (or its designee) "AS IS" and without any representations or warranties
all rights, title and interest in and to the Initial Acquisition Property or the
Project Entity which owns the Initial Acquisition Property. In addition, the
Company shall execute such instruments of transfer and release with respect to
the Initial Acquisition Property or the interest in the Project Entity as shall
be reasonably required by Ramco, or Investcorp.
d. If Ramco fails to consummate to acquisition on the closing date set
forth above, the Put Price shall bear interest at the rate provided in Section
2.03a(1) hereof and, Investcorp may (i) institute a legal action to enforce the
payment of the Put Price together with interest thereon, (ii) set off or deduct
any amounts due from the amount otherwise due Ramco under Article II hereof and
pay the amount to Investcorp and (iii) immediately exercise the remedies set
forth in Section 2.03b(2), (3) and (4) hereof.
e. Ramco's obligations hereunder shall survive Ramco's acquisition of
any such Shopping Center.
9.04 NOTICES
a. Any notice, election, demand, request, consent, approval,
concurrence or other communication given or made under any provision of this
Agreement shall be deemed to have been sufficiently given or made for all
purposes if it is in writing and it is (i) delivered personally (or sent by
facsimile) to the party to whom it is directed at the address set forth in the
introductory paragraph of this Agreement or (ii) sent by first class mail,
certified mail, return receipt requested, addressed to the party to whom it is
directed, at its address set forth in the introductory paragraph of this
Agreement, or (iii) sent by receipted overnight package delivery service,
addressed to the party to whom it is directed, at its address set forth in the
introductory paragraph to this Agreement. A Member may change its address for
purposes of this Agreement by giving the other Member notice of such change in
the manner herein before provided for the giving of notices. Copies of any
notice, election, demand, request, consent, approval, concurrence or other
communication given or made in accordance with this Section 9.04a shall be
addressed and sent to:
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If to Ramco, to: c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 40834
Attn: Chief Financial Officer
with a copy to: Honigman Miller Schwartz & Cohn
2290 First National Building
Detroit, Michigan 48226
Attn: Richard J. Burstein, Esq.
If to Investcorp, to: c/o Investcorp International, Inc.
280 Park Avenue, 37th Floor West
New York City, New York 10128
Attn: F. Jonathan Dracos
with a copy to: Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attn: Eric R. Landau, Esq.
b. Except as otherwise expressly provided in this Agreement, any such
notice, election, demand, request, consent, approval, concurrence or other
communication (i) given or made in the manner indicated in clause (i) of Section
9.04a hereof, shall be deemed to be given or made on the day on which it is
delivered, (ii) given or made in the manner indicated in clause (ii) of Section
9.04a hereof, shall be deemed to be given or made on the fifth business day
after the day on which it was deposited in a regularly maintained receptacle for
the deposit of the United States' mail and (iii) given or made in the manner
indicated by clause (iii) of Section 9.04a hereof, shall be deemed to be given
or made on the second day after which it was delivered to the carrier.
9.05 TERMS
Nouns and pronouns will be deemed to refer to the masculine, feminine,
neuter, singular and plural, as the identity of the person or persons, firm or
corporation may in the context require.
9.06 ARTICLE AND SECTION HEADINGS
The article and Section headings in this Agreement are for
identification only; they are not intended to interpret the intent of any of the
provisions of this Agreement.
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9.07 ENTIRE AGREEMENT
This Agreement and the transactions described or contemplated hereby
constitutes the entire agreement among the parties hereto and contains all of
the agreements among said parties with respect to the subject matter hereof.
9.08 SEVERABILITY
If any provision hereof shall be judicially determined to be illegal,
or if the application thereof to any person or in any circumstance shall, to any
extent, be judicially determined to be invalid or unenforceable, the remainder
of this Agreement, or the application of such provision to persons or in
circumstances other than those to which it has been judicially determined to be
invalid or unenforceable, shall not be affected thereby, and each provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
9.09 AMENDMENT
This Agreement may be amended or revoked at any time by a written
agreement executed by all of the Members. No change or modification to this
Agreement shall be valid unless in writing and signed by all of the Members.
9.10 BINDING EFFECT
Subject to the provisions of this Agreement relating to
transferability, this Agreement will be binding upon and shall inure to the
benefit of the parties hereto, and their respective distributees, heirs,
successors and assigns.
9.11 GOVERNING LAW
This Agreement shall be governed by, construed and enforced in
accordance with, the laws of the State of Delaware.
9.12 COUNTERPARTS
This Agreement may be executed in several counterparts, each of which
will be deemed an original but all of which will constitute one and the same
document.
9.13 NO THIRD PARTY RIGHTS CREATED HEREBY
The provisions of this Agreement are solely for the purpose of defining
the interests of the Members, inter se; and no other individual, firm or entity
(i.e., a party who is not a signatory hereto or a permitted successor to such
signatory hereto) shall
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have any right, power, title, or interest by way of subrogation or otherwise, in
and to the rights, powers, titles, and provisions of this Agreement.
9.14 ADDITIONAL ACTS AND INSTRUMENTS
Each Member hereby agrees to do such further acts and things and to
execute any and all instruments necessary or desirable and as reasonably
required in the future to carry out the full intent and purpose of this
Agreement.
9.15 DATE OF AGREEMENT
For all purposes hereof, the date of execution of this Agreement shall
be the last date on which this Agreement has been signed by the Members (which
date shall be inserted by the last signatory in the first paragraph of this
Agreement).
9.16 RIGHT OF SETOFF
Simultaneously with the execution hereof, certain Project Entities have
executed contracts (together with any and all documents, instruments and/or
agreements executed and/or delivered in connection therewith, collectively, the
"Initial Acquisition Properties Contracts") to acquire, and have acquired, the
Initial Acquisition Properties (or membership interests of the entities owning
same) from Ramco. In connection with the foregoing acquisitions, Ramco has
executed one or more Indemnification Agreements relating to the Initial
Acquisition Properties, which agreements for indemnification are also included
in the Initial Acquisition Properties Contracts (collectively, the "Indemnity
Agreement"). In the event (i) Ramco (or its affiliates) defaults under any term,
covenant or condition [including, without limitation, any breach of any
representation, warranty or failure to make required payments on account of
apportionments or any breach of Section 16 of each of the Initial Acquisition
Properties Contracts and of Section 6 of the Initial Acquisition Properties
Contract relating to Rivertowne, and Sections 30(m), 30(n) or 30(q) of the
Initial Acquisition Properties Contract relating to Chester Springs] or (ii) the
Company, a Project Entity or Investcorp makes a claim under an Indemnity
Agreement, the Company shall setoff or deduct any amounts due to such entity
under clauses (i) and/or (ii) (the "Claimed Amount") from amounts otherwise due
to Ramco under Article III hereof and pay the Claimed Amount to Investcorp.
If Ramco disputes all or part of the Claimed Amount (the amount in
dispute, the "Disputed Amount"), the Company shall not setoff or deduct the
Disputed Amount from amounts otherwise due and payable to Ramco under Article
III hereof, until a judgment with respect to such Disputed Amount is obtained.
If the Disputed Amount is greater than or equal to Two Hundred Fifty Thousand
Dollars [$250,000.00] or the claim relates to Section 16 of each of the Initial
Acquisition Properties Contracts and of Section 6 of the Initial Acquisition
Properties Contract relating to Rivertowne, and Sections 30(m),
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30(n) and 30(q) of the Initial Acquisition Properties Contract relating to
Chester Springs, then in such event, prior to obtaining a judgment as to the
Disputed Amount, the Company shall retain the Disputed Amount. Upon obtaining a
judgment, the Company shall pay the Disputed Amount (or portion thereof) to
Investcorp, the Company or the Project Entity, as applicable.
If Ramco does not pay the Claimed Amount to the appropriate party in
the time period set forth in the Initial Acquisition Properties Contracts, the
Claimed Amount shall bear interest at a rate set forth in Section 2.03a(i) until
the date same is paid. In addition to the foregoing, if Ramco has not paid any
amounts payable under the Initial Acquisition Properties Contracts or the
Indemnity Agreements within 90 days from the date such judgment is rendered,
either by set off in accordance with the preceding paragraph or otherwise, the
Company, the Project Entity, and Investcorp shall have the remedies set forth in
Section 2.03(b)(2), (3) and (4) hereof.
The foregoing rights shall be in addition to any other rights available
to the Company, the Project Entities, or Investcorp at law, in equity, or
otherwise.
ARTICLE X
DEFINITIONS
10.01 DEFINITIONS
For purposes of this Agreement, the following terms have the following
respective meanings, unless the context clearly indicates a different meaning:
a. "Act" has the meaning specified in Recital A. of this Agreement.
b. "Adjusted Augmented Capital Account" has the meaning specified in
Section 3.01g(1) hereof.
c. "Adjusted Capital Contributions" means, with respect to each Member
for each fiscal year of the Company, the sum of (i) and (ii), where (i) is the
aggregate amount of cash actually contributed to the capital of the Company by
such Member through and including the last day of the preceding fiscal year, and
(ii) is the amount obtained by multiplying the aggregate amount of cash actually
contributed to the capital of the Company by such Member during such fiscal year
by a fraction, the numerator of which is the number of days remaining in such
fiscal year when such cash was contributed to the Company denominator of which
is the total number of days in such fiscal year.
d. "Adjusted Capital Distributions" means, with respect to each Member
for each fiscal year of the Company, the sum of (i) and (ii), where (i) is the
aggregate amount of cash actually distributed by the Company to such Member
(except
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distributions pursuant to Sections 3.02a(1), 3.02a(2), 3.03a(2) or 3.03a(3)
hereof) prior to the first day of such fiscal year, and (ii) is the amount
obtained by multiplying the aggregate amount of cash actually distributed by the
Company to such Member (except distributions pursuant to Sections 3.02a(1),
3.02a(2), 3.03a(2) or 3.03a(3) hereof) during such fiscal year by a fraction,
the numerator of which is the number of days remaining in such fiscal year on
the date that such cash was distributed by the Company and the denominator of
which is the total number of days in such fiscal year.
e. "Affiliate" means, with respect to any Member, any person
(individual or entity, as the case may be) that, either directly or indirectly
through one or more intermediaries, controls, or is controlled by or is under
common control with the person specified. As used herein, "control or
controlling" shall mean possession, directly or indirectly, of the power to
direct or cause the direction of the management and process of a person, whether
through the ownership of voting securities, by contract or otherwise.
f. "Agreement" means this Limited Liability Company Agreement of
RPT/Invest L.L.C., as the same may be amended from time to time.
g. "Applicable Percentage" means, with respect to each Member, the
percentage set forth opposite such Member's name in column (3) on Exhibit A
attached hereto.
h. "Assignment", "assign", "assignor", and "assignee", as used in
Article VI hereof, shall have the respective meanings specified in Section 7.01b
hereof.
i. "Capital Account" means a bookkeeping account maintained by the
Company with respect to each Member, which shall be:
(1) credited with the amount of cash and the initial fair market
value of any other property contributed by such Member to the capital
of the Company, such Member's distributive share of Profits, any items
of income or gain that are allocated to such Member pursuant to Section
3.01 hereof, and the amount of any Company liabilities that are assumed
by such Member or that are secured by any Company property distributed
to such Member, and
(2) debited with the amount of cash, and the fair market value of
any Company property, distributed to such Member pursuant to any
provision of this Agreement, such Member's distributive share of
Losses, any items of expense or loss that are allocated to such Member
pursuant to Section 3.01 hereof, and the amount of any liabilities of
such Member that are assumed by the Company or that are secured by any
property contributed by such Member to the Company.
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In the event that a Member's Membership Interest or a portion thereof
is transferred in accordance with the provisions of this Agreement, the
transferee shall succeed to the Capital Account of the transferor to the extent
that it relates to the Membership Interest or portion thereof so transferred.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Section 1.704-1(b) of the Treasury Regulations, and shall be interpreted and
applied in a manner consistent with such Regulations. In accordance with Section
1.704-1(b)(2)(iv)(q) of the Treasury Regulations, each Member's Capital Account
shall be adjusted in a manner that maintains equality between the aggregate of
all of the Members' Capital Accounts and the amount of capital reflected on the
Company's balance sheet as computed for book purposes.
j. "Capital Call Notice" has the meaning specified in Section 2.02c
hereof.
k. "Cash Disbursements" has the meaning specified in Section 3.02b(2)
(b) hereof.
l. "Cash Flow" has the meaning specified in Section 3.02b(1) hereof.
m. "Cash Receipts" has the meaning specified in Section 3.02b(2)(a)
hereof.
n. "Certificate" has the meaning specified in Section 1.01 hereof.
o. "Code" means the Internal Revenue Code of 1986, as amended.
p. "Company" has the meaning specified in Recital A. to this Agreement.
q. "Consideration Period" has the meaning specified in Section 4.03b
hereof.
r. "Control(s)" (and its correlative terms "Controlled By" and "Under
Common Control With") means with respect to any Member, possession by the
applicable individual or individuals or entity or entities of the power, acting
alone (or, solely among such individuals or entities, acting together), to
designate and direct or cause the designation and direction of the management
and policies thereof whether through the ownership of voting securities, by
contract or otherwise.
s. "Defaulting Member" has the meaning specified in Section 2.03a
hereof.
t. "Disability Event" means, with respect to each Member, the
dissolution, termination, cessation of existence, bankruptcy or insolvency of
such Member.
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u. "Disabled Member" means any Member with respect to whom a Disability
Event has occurred.
v. "Distributable Project Entity Cash Flow" has the meaning specified
in Section 3.02b(2) hereof.
w. "Due Diligence Period" has the meaning specified in Section 4.03c
hereof.
x. "Event of Default" has the meaning specified in Section 2.03a
hereof.
y. "Family Trust" means with respect to an individual, a trust for the
benefit solely of such individual or for the benefit of any member or members of
his Immediate Family or for the benefit of such individual and any member or
members of such individual's Immediate Family (for the purpose of determining
whether or not a trust is a Family Trust, the fact that one or more of the
beneficiaries (but not the sole beneficiary) of the trust includes a person or
persons, other than a member of such individual's Immediate Family, entitled to
a principal distribution if he, she, it, or they shall have survived the settlor
of such trust, which distributions to be made of something other than a
Membership Interest and/or includes an organization or organizations exempt from
federal income tax pursuant to the provisions of Section 501(a) of the Code and
described in Section 501(c)(3) of the Code shall be disregarded); provided,
however, that in respect of transfers by way of testamentary or inter vivos
trust, the trustee or trustees shall be solely such individual, a member or
members of such individual's Immediate Family, a responsible financial
institution, an attorney that is a member of the Bar of any State in the United
States, or an individual or individuals approved by that Member or those Members
than holding an aggregate Applicable Percentage of at least eighty percent
(80%).
z. "Formation Date" has the meaning specified in Section 1.01 hereof.
aa. "Immediate Family" means with respect to any individual, such
individual's spouse (past or current), descendants (natural or adoptive),
grandparents, parents, siblings of the whole or half blood, and descendents of
parents of such individual's spouse (past or present).
bb. "Indemnified Person" has the meaning specified in Section 9.01a
hereof.
cc. "Initial Acquisition Properties" means the Shopping Centers
commonly know as Rivertowne and Chester.
dd. "Investcorp" has the meaning specified in the introductory
paragraph to this Agreement.
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ee. "Investment Committee" has the meaning specified in Section 5.02a
hereof.
ff. "Investment Termination Date" has the meaning specified in Section
2.02a hereof.
gg. "Manager" has the meaning specified in Section 5.01a hereof.
hh. "Maximum Required Aggregate Contribution" has the meaning specified
in Section 2.02a hereof.
ii. "Member" shall refer to any person designated as a member of the
Company on Exhibit A attached hereto, or any successor in interest admitted as a
member pursuant to the provisions of this Agreement, and "Members" shall refer
to all Members collectively.
jj. "Membership Interest" means, with respect to each Member, (i) such
Member's entire interest in the Company, and the property, assets and capital
thereof, and (ii) the share of the Profits, Losses, items of income, gain,
expense or loss and distributions of the Company allocable to such Member under
the provisions of this Agreement.
kk. "Net Adjusted Capital Contributions" means, with respect to each
Member for each fiscal year of the Company, the Adjusted Capital Contributions
with respect to such Member for such fiscal year less the Adjusted Capital
Distributions with respect to such Member for such fiscal year, but not less
than zero.
ll. "Net Operating Income" has the meaning specified in Section 4.19c
hereof.
mm. "Net Sale or Refinancing Proceeds" has the meaning specified in
Section 3.03b hereof.
nn. "New Opportunity Notice" has the meaning specified in Section 4.03b
hereof.
oo. "Nondefaulting Member" has the meaning specified in Section 2.03a
hereof.
pp. "Offer" has the meaning specified in Section 4.10a hereof.
qq. "Omitted Contribution" has the meaning specified in Section 2.03a
hereof.
rr. "Option Period" has the meaning specified in Section 4.09a hereof.
53
<PAGE> 58
ss. "Profit" and "Loss" each has the meaning specified in Section
3.01g(3) hereof.
tt. "Project Entities" means those partnerships, limited partnerships,
limited liability partnerships, limited liability companies, corporations,
business trusts, or any other types of business entity or organization formed by
the Investment Committee on behalf of the Company for the purpose of acquiring,
owning, operating, expanding, renovating, marketing and selling Shopping
Centers.
uu. "Project Entity Net Sale or Refinancing Proceeds" has the meaning
specified in Section 3.03c hereof.
vv. "Preferred Return" means, with respect to each Member for each
fiscal year of the Company, an amount of Cash Flow with respect to such fiscal
year equal to nine percent (9%) (adjusted in an appropriate manner, as
determined by the Investment Committee, with respect to any short fiscal year)
of the Net Adjusted Capital Contributions of such Member with respect to such
fiscal year. The Preferred Return shall not be compounded. The Preferred Return
shall be cumulative, such that if the Cash Flow with respect to any fiscal year
of the Company shall be insufficient to cover the full amount of the Preferred
Return with respect to such Member for such fiscal year together with the unpaid
portion of the Preferred Return with respect to such Member for each prior
fiscal year of the Company, then the unpaid portion of the Preferred Return with
respect to such Member for such fiscal year and each prior fiscal year of the
Company shall be carried forward to the succeeding fiscal year, and from fiscal
year to fiscal year, and shall be paid out of, and to the extent of, the first
available Cash Flow, as provided in this Section 10.01aaa., and in Section
3.02a(2) and Section 3.02a(3) hereof, as the case may be.
ww. "Purchase Option" has the meaning specified in Section 4.09a
hereof.
xx. "Purchase Price" has the meaning specified in Section 4.09c hereof.
yy. "Put Option" has the meaning specified in Section 9.03 hereof.
zz. "Ramco Member" has the meaning specified in the introductory
paragraph to this Agreement.
aaa. "Regulations" has the meaning specified in Section 3.01d(3)
hereof.
bbb. "Regulatory Provisions" has the meaning specified in Section 3.01c
hereof.
54
<PAGE> 59
ccc. "RGI" has the meaning specified in Section 4.05a hereof.
ddd. "Shopping Center" means, collectively, a strip shopping center, a
community shopping center or a power shopping center located in the United
States of America, together with the real property underlying such shopping
center, the common areas located thereon and all of the amenities incidental to
such shopping center.
eee. "Successor" means, with respect to a Disabled Member, such
Disabled Member's successor(s) in interest, personal representative(s) heirs at
law, legatee(s), or estate.
fff. "Target Investment Criteria" has the meaning specified in Section
1.03 hereof.
ggg. Termination Date" has the meaning specified in Section 1.05b
hereof.
hhh. "Tax Matters Partner" has the meaning specified in Section 6.03
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives effective as of the date first
above written.
"INVESTCORP"
Shop Invest LLC
a Delaware limited liability company
By: /s/ F. JONATHAN DRACOS
------------------------------
Its: Vice President
------------------------------
"RAMCO"
Ramco-Gershenson Properties, L.P.,
a Delaware limited partnership
By: Ramco-Gershenson Properties Trust,
a Maryland real estate investment trust
By /s/ DENNIS GERSHENSON
-------------------------------
Its: President
-------------------------------
55
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, STATEMENTS OF INCOME, STATEMENTS OF SHAREHOLDERS
EQUITY, STATEMENTS OF CASH FLOWS AND NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-Q FOR THE
QUARTERLY PERIOD ENDED SEPTEMBER 30, 1999.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 2812
<SECURITIES> 0
<RECEIVABLES> 12367
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 540457
<DEPRECIATION> 33155
<TOTAL-ASSETS> 546198
<CURRENT-LIABILITIES> 21799
<BONDS> 332752
33829
0
<COMMON> 72
<OTHER-SE> 109609
<TOTAL-LIABILITY-AND-EQUITY> 546198
<SALES> 0
<TOTAL-REVENUES> 63627
<CGS> 0
<TOTAL-COSTS> 16968
<OTHER-EXPENSES> 15939
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 19215
<INCOME-PRETAX> 11505
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 8012
<EPS-BASIC> .76
<EPS-DILUTED> .76
</TABLE>
