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EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made as of May 10, 1996 (this
"AGREEMENT"), among RAMCO-GERSHENSON PROPERTIES TRUST, formerly known as RPS
Realty Trust, a Massachusetts business trust (the "COMPANY"), DENNIS GERSHENSON,
JOEL GERSHENSON, BRUCE GERSHENSON, RICHARD GERSHENSON, MICHAEL A. WARD, MICHAEL
A. WARD U/T/A DATED 2/22/77, AS AMENDED (collectively, the "RAMCO PRINCIPALS")
and each of the Persons (together with the Ramco Principals, collectively, the
"HOLDERS") set forth on Exhibit A hereto (as it may be amended from time to
time).
RECITALS:
A. The Holders are entering into this Agreement in connection with the
transactions (the "RAMCO TRANSACTION") effectuated on this day by the Company
and Ramco-Gershenson, Inc. and its affiliates pursuant to which the Company
contributed cash and properties to Ramco-Gershenson Properties, L.P., a Delaware
limited partnership (the "OPERATING PARTNERSHIP").
B. Pursuant to the Ramco Transaction, the Holders have been issued units
of limited partnership interest in the Operating Partnership ("OP UNITS"), which
OP Units may be exchanged for shares of beneficial interest of the Company, par
value $.10 per share (the "SHARES") pursuant to an Exchange Rights Agreement
dated the date hereof and entered into among the Holders and the Company
pursuant to the Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, dated the date hereof (as amended from time to time, the
"OPERATING PARTNERSHIP AGREEMENT").
C. The Company has agreed to provide each of the Holders with certain
registration rights as set forth herein.
Accordingly, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1. "AGREEMENT" has the meaning set forth in the introductory paragraph.
1.2. "RAMCO TRANSACTION" has the meaning set forth in Recital A.
1.3. "BUSINESS DAY" means any day on which the New York Stock Exchange is
open for trading.
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1.4. "CLOSING DATE" means the date of the consummation of the Ramco
Transaction.
1.5. "COMPANY" has the meaning set forth in the introductory paragraph.
1.6. "ELIGIBLE SECURITIES" means all or any portion of the Shares acquired
by the Holders in connection with or upon exchange of the OP Units. As to any
proposed offer or sale of Eligible Securities, such securities shall cease to
be Eligible Securities with respect to such proposed offer or sale when (i) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement or (ii) such
securities shall have been otherwise transferred pursuant to an applicable
exemption under the Securities Act, new certificates for such securities not
bearing a legend restricting further transfer shall have been delivered by the
Company and such securities shall be freely transferable to the public without
registration under the Securities Act.
1.7. "LOCK-UP AGREEMENTS" means the Lock-Up Agreements executed in favor
of the Company by each of the Holders.
1.8. "LOCK-UP DATE" (a) with respect to the Ramco Principals means the
date that is 30 months after the Closing Date and (b) with respect to Holders
other than the Ramco Principals means the date that is one year after the
Closing Date. If any such date is not a Business Day, the next succeeding date
that is a Business Day shall be the Lock-Up Date.
1.9. "OPERATING PARTNERSHIP" has the meaning set forth in Recital A.
1.10. "OPERATING PARTNERSHIP AGREEMENT" has the meaning set forth in
Recital B.
1.11. "PERSON" means an individual, a partnership (general or limited),
corporation, joint venture, business trust, cooperative, association or other
form of business organization, whether or not regarded as a legal entity under
applicable law, a trust (inter vivos or testamentary), an estate of a deceased,
insane or incompetent person, a quasi-governmental entity, a government or any
agency, authority, political subdivision or other instrumentality thereof, or
any other entity.
1.12. "PERMITTED TRANSFEREES" with respect to each Holder means (i) with
respect to OP Units, Persons which qualify as Permitted Transferees under the
Operating Partnership Agreement, and (ii) with respect to Shares, any other
Holder or an Affiliate of such Holder; provided, that no Person shall be deemed
to be a Permitted Transferee until the Company receives the requisite notice
and signature page pursuant to Section 7.1. As used herein, the term
"AFFILIATE" shall mean any Person that directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common control
with, a specified Person, and, with respect to an individual, shall include
such Person's immediate family or a trust for the benefit thereof.
1.13. "REGISTRATION EXPENSES" means all expenses incident to the Company's
performance of or compliance with the registration requirements set forth in
this Agreement
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including, without limitation, the following: (i) the fees, disbursements and
expenses of the Company's counsel(s) (United States and foreign), accountants
and experts in connection with the registration of Eligible Securities to be
disposed of under the Securities Act; (ii) all expenses in connection with the
preparation, printing and filing of the registration statement, any preliminary
prospectus or final prospectus, any other offering document and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
underwriters and dealers; (iii) the cost of printing or producing any
agreement(s) among underwriters, underwriting agreement(s) and blue sky or legal
investment memoranda, any selling agreements and any other documents in
connection with the offering, sale or delivery of Eligible Securities to be
disposed of; (iv) all expenses in connection with the qualification of Eligible
Securities to be disposed of for offering and sale under state securities laws,
including the fees and disbursements of counsel for the underwriters in
connection with such qualification and in connection with any blue sky and legal
investment surveys; (v) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of Eligible Securities to be disposed of; (vi) fees and expenses incurred in
connection with the listing of Eligible Securities on each securities exchange
or quotation system on which the Shares are then listed; and (vii) SEC or blue
sky registration fees attributable to Eligible Securities or transfer taxes
applicable to Eligible Securities; provided, that Registration Expenses with
respect to any registration pursuant to this Agreement shall not include
underwriting discounts or commissions attributable to Eligible Securities.
1.14. "SEC" means the Securities and Exchange Commission.
1.15. "SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the relevant time.
1.16. "SELLING INVESTOR" means any Holder who has requested registration
pursuant to Section 3.1.
ARTICLE II
EFFECTIVENESS OF REGISTRATION RIGHTS
2.1. EFFECTIVENESS OF REGISTRATION RIGHTS. This Agreement shall become
effective on the date hereof, provided, that the exercise of any registration
rights granted pursuant to Article 3 prior to the Lock-Up Date shall be subject
to the prior receipt by the Company of the written consent of a majority of the
Company's Board of Trustees (including a majority of the independent trustees)
to the waiver of the restrictions on transfer of the Shares and securities
convertible into or exchangeable or exercisable for Shares set forth in the
Lock-Up Agreement applicable to the Holder exercising such registration rights.
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ARTICLE III
INCIDENTAL REGISTRATION
3.1. NOTICE AND REGISTRATION. If the Company proposes to register any
Shares, any equity securities exercisable for, convertible into or exchangeable
for Shares, or other securities issued by it having terms substantially similar
to Eligible Securities ("OTHER SECURITIES") for public sale under the
Securities Act on a form and in a manner which would permit registration of
Eligible Securities for sale to the public under the Securities Act, it will
give written notice to each Holder of its intention to do so, and upon the
written request of any Holder delivered to the Company within 15 Business Days
after the giving of any such notice (which request shall specify the number of
Eligible Securities intended to be disposed of by such Holder and the intended
method of disposition thereof), the Company will use commercially reasonable
efforts to effect, in connection with the registration of the Other Securities,
the registration under the Securities Act of all Eligible Securities which the
Company has been so requested to register by the Selling Investors, to the
extent required to permit the disposition (in accordance with the intended
method or methods thereof as aforesaid) of Eligible Securities so to be
registered, provided, that:
(a) if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the effective
date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register
the Other Securities, the Company may, at its election, give written
notice of such determination to the Selling Investors and thereupon the
Company shall be relieved of its obligation to register such Eligible
Securities in connection with the registration of such Other Securities
(but not from its obligation to pay Registration Expenses to the extent
incurred in connection therewith as provided in Section 3.2);
(b) The Company will not be required to effect any registration
pursuant to this Article 3 if the Company shall have been advised in
writing (with a copy to the Selling Investors) by a nationally recognized
independent investment banking firm selected by the Company to act as
lead underwriter in connection with the public offering of securities by
the Company that, in such firm's opinion, a registration of Eligible
Securities requested to be registered at that time would materially and
adversely affect the Company's own scheduled offering of Other
Securities; provided, that if an offering of some but not all of the
Eligible Securities requested to be registered by the Selling Investors
would not materially adversely affect the Company's offering of Other
Securities, the Company shall register the Maximum Excess Amount (as
defined below), and such Maximum Excess Amount shall be allocated pro
rata among all Selling Investors based upon the number of shares for
which registration was requested by each. For purposes of this
paragraph, the "MAXIMUM EXCESS AMOUNT" shall mean the largest number of
Eligible Securities (if any) that, in the opinion of the nationally
recognized independent investment banking firm selected by the Company,
could be offered to the public without materially adversely affecting the
offering and sale of Other Securities as then contemplated by the
Company;
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(c) The Company shall not be required to effect any registration of
Eligible Securities under this Article 3 incidental to the registration of
any of its securities in connection with mergers, acquisitions, exchange
offers, subscription offers, dividend reinvestment plans or stock options
or other employee benefit plans; and
(d) Notwithstanding any request under Section 3.1(a), a Selling
Investor may elect in writing prior to the effective date of a registration
under this Article 3, not to register all or any portion of its Eligible
Securities in connection with such registration.
3.2. REGISTRATION EXPENSES. The Company shall be responsible for the
payment of all Registration Expenses in connection with any registration
pursuant to this Article 3.
ARTICLE IV
REGISTRATION PROCEDURES
4.1. REGISTRATION AND QUALIFICATION. If and whenever the Company is
required to use all reasonable efforts to effect the registration of any
Eligible Securities under the Securities Act as provided in Article 3, the
Company will as promptly as is practicable:
(a) prepare, file and use commercially reasonable efforts to cause
to become effective a registration statement under the Securities Act
regarding the Eligible Securities to be offered;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with
respect to the disposition of all Eligible Securities until the earlier
of such time as all of such Eligible Securities have been disposed of in
accordance with the intended methods of disposition by the Selling
Investors set forth in such registration statement or the expiration of
90 days after such Registration Statement becomes effective;
(c) furnish to the Selling Investors and to any underwriter of such
Eligible Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and
any summary prospectus), in conformity with the requirements of the
Securities Act, such documents incorporated by reference in such
registration statement or prospectus, and such other documents as the
Selling Investors or such underwriter may reasonably request;
(d) use commercially reasonable efforts to register or qualify all
Eligible Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as the Selling
Investors or any underwriter of such Eligible
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Securities shall reasonably request, and do any and all other acts and
things which may be reasonably requested by the Selling Investors or any
underwriter to consummate the disposition in such jurisdictions of the
Eligible Securities covered by such registration statement, except the
Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction wherein it is not
so qualified, or to subject itself to taxation in any jurisdiction where
it is not then subject to taxation, or to consent to general service of
process in any jurisdiction where it is not then subject to service of
process;
(e) use commercially reasonable efforts to list the Eligible
Securities on each national securities exchange or quotation system on
which the Shares are then listed, if the listing of such securities is
then permitted under the rules of such exchange;
(f) (i) use commercially reasonable efforts to furnish to the
Selling Investors an opinion of counsel for the Company, addressed to
them, dated the date of the closing under the underwriting agreement, and
(ii) upon such Selling Investor's request, use commercially reasonable
efforts to furnish to the Selling Investors a "comfort letter" signed by
the independent public accountants who have certified the Company's
financial statements included in such registration statement, addressed
to them; provided, that with respect to such opinion and "comfort
letter," the following shall apply: (A) the opinion and "comfort letter"
shall cover substantially the same matters with respect to such
registration statement (and the prospectus included therein) as are
customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of
securities and such other matters as the Selling Investors may reasonably
request; and (B) the "comfort letter" also shall cover events subsequent
to the date of such financial statements; and
(g) notify the Selling Investors immediately upon the happening of
any event as a result of which a prospectus included in a registration
statement, relating to a registration pursuant to Article 3, as then in
effect, includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and, at the request of the Selling Investors,
prepare and furnish to the Selling Investors as many copies of a
supplement to or an amendment of such prospectus as the Selling Investors
reasonably request so that, as thereafter delivered to the purchasers of
such Eligible Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
The Company may require the Selling Investors to furnish the Company such
information regarding the Selling Investors and the distribution of such
securities as the Company may from time to time reasonably request in writing
and as shall be required by law or by the SEC in connection with any
registration.
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4.2. UNDERWRITING. (a) If requested by the underwriters for any
underwritten offering of Eligible Securities pursuant to a registration
described in this Agreement, the Company will enter into and perform its
obligations under an underwriting agreement with such underwriters for such
offering, such agreement to contain such representations and warranties by the
Company and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the
extent provided in Article 6 and the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section
4.1(f). The holders of Eligible Securities on whose behalf Eligible Securities
are to be distributed by such underwriters shall be parties to any such
underwriting agreement and the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Eligible Securities.
(b) In the event that any registration pursuant to Article 3 shall
involve, in whole or in part, an underwritten offering, the Company may require
Eligible Securities requested to be registered pursuant to Article 3 to be
included in such underwriting on the same terms and conditions as shall be
applicable to the Other Securities being sold through underwriters under such
registration. In such case, the holders of Eligible Securities on whose behalf
Eligible Securities are to be distributed by such underwriters shall be parties
to any such underwriting agreement. Such agreement shall contain such
representations and warranties by the Company and the Selling Investors and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities and contribution to the effect and to the extent
provided in Article 6. The representations and warranties in such underwriting
agreement by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such holders of Eligible Securities.
4.3. QUALIFICATION FOR RULE 144 SALES. The Company will take all actions
reasonably necessary to comply with the filing requirements described in Rule
144(c)(1) so as to enable the Holders to sell Eligible Securities without
registration under the Securities Act and, upon the written request of any
Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such filing requirements.
ARTICLE V
PREPARATION; REASONABLE INVESTIGATION
5.1. PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement registering Eligible
Securities under the Securities Act, the Company will give the Selling
Investors and the underwriters, if any, and their respective counsel and
accountants, drafts of such registration statement for their review and comment
prior to filing and such reasonable and customary access to its books and
records and such opportunities to discuss the business of the Company with its
officers and the independent public accountants who have certified
its financial statements as shall be necessary, in the opinion of the Selling
Investors
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and such underwriters or their respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
ARTICLE VI
INDEMNIFICATION AND CONTRIBUTION
6.1. INDEMNIFICATION. (a) In the event of any registration of Eligible
Securities hereunder, the Company will, and hereby does, indemnify and hold
harmless, each Selling Investor, its respective directors, trustees, officers,
partners, agents, employees and affiliates and each other person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls each such Selling Investor or any such
underwriter within the meaning of the Securities Act, against any and all
losses, claims, damages, expenses or liabilities, joint or several, actions or
proceedings (whether commenced or threatened) in respect thereof, to which each
such indemnified party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, expenses or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made not misleading,
and the Company will reimburse each such Selling Investor and each such
director, trustee, officer, partner, agent, employee or affiliate, underwriter
and controlling person for any legal or any other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, expense, liability, action, or proceeding; provided, that (i) the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, expense or liability (or action or proceeding in respect thereof)
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company through an instrument duly executed by or on behalf of such
Selling Investor or underwriter specifically stating that it is for use in the
preparation thereof, and (ii) the Company shall not be liable to any person who
participates as an underwriter in the offering or sale of Eligible Securities or
any other person, if any, who controls or is controlled by such underwriter
within the meaning of the Securities Act, in any such case to the extent that
any such loss, claim, damage, expense or liability (or action or proceeding in
respect thereof) arises out of such underwriter's failure to send or give a copy
of the final prospectus, as the same may be then supplemented or amended, to the
person asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of Eligible
Securities to such person if such statement or omission was corrected in such
final prospectus.
(b) Each Selling Investor severally will indemnify, and hereby does,
indemnify and hold harmless the Company, its trustees, its officers who sign the
registration statement, each
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Person who participates as an underwriter in the offering or sale of such
securities, and each Person, if any, who controls the Company or any such
underwriter within the meaning of the Securities Act against any and all losses,
claims, damages, expenses or liabilities, joint or several, actions or
proceedings (whether commenced or threatened) in respect thereof, to which each
such indemnified party may become subject under the Securities Act or otherwise
insofar as such losses, claims, damages, expenses or liabilities (or actions or
proceedings, whether commenced or threatened in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact in or omission or alleged omission to state a material fact in such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, but only
to the extent that such statement or omission was made in reliance upon and in
conformity with written information furnished by such Selling Investor to the
Company through an instrument duly executed by or on behalf of such Selling
Investor specifically stating that it is for use in preparation thereof and
provided, that no Selling Investor shall be liable to any person who
participates as an underwriter in the offering or sale of Eligible Securities or
any other person, if any, who controls or is controlled by such underwriter
within the meaning of the Securities Act, in any such case to the extent that
any such loss, claim, damage, expense or liability (or action or proceeding in
respect thereof) arises out of such underwriter's failure to send or give a copy
of the final prospectus, as the same may be then supplemented or amended, to the
person asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of Eligible
Securities to such person if such statement or omission was corrected in such
final prospectus..
(c) Promptly after receipt by any indemnified party hereunder of
notice of the commencement of any action or proceeding involving a claim
referred to in paragraphs (a) or (b) of this Section 6.1, the indemnified party
will notify the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
under paragraphs (a) or (b) of this Section 6.1, except to the extent it is
prejudiced thereby. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel selected by it
and approved by the indemnified party (which approval shall not be unreasonably
withheld or delayed), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under paragraph
(a) or (b) of this Section 6.1 for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that an indemnified party shall have the right
to retain its own counsel, with the reasonable fees and expenses to be paid by
the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. In addition, the
indemnifying party shall not be required to indemnify, reimburse or otherwise
make
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any contribution to the amount paid or payable by the indemnified party for any
losses, claims, damages, expenses or liabilities incurred by the indemnified
party in settlement of any actions, proceedings or investigations otherwise
covered hereunder unless such settlement has been previously approved by the
indemnifying party, which approval shall not be unreasonably withheld or
delayed.
(d) If for any reason the indemnity under this Section 6.1 is
unavailable or is insufficient to hold harmless any indemnified party under
paragraph (a) or (b) of this Section 6.1, then the indemnifying parties shall
contribute to the amount paid or payable to the indemnified party as a result
of any loss, claim, expense, damage or liability (or actions or proceedings,
whether commenced or threatened, in respect thereof), and legal or other
expenses reasonably incurred by the indemnified party in connection with
investigating or defending any such loss, claim, expense, damage, liability,
action or proceeding, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Investor and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. If, however, the
allocation provided in the second preceding sentence is not permitted by
applicable law, or if the allocation provided in the second preceding sentence
provides a lesser sum to the indemnified party than the amount hereinafter
calculated, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party in such proportion as is appropriate to
reflect not only such relative fault but also the relative benefits of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this paragraph (d) of Section 6.1
were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the preceding sentences of this paragraph (d) of Section 6.1.
(e) Indemnification and contribution similar to that specified in
this Section 6.1 (with appropriate modifications) shall be given by the Company
and the Selling Investors with respect to any required registration or other
qualification of securities under any federal, state or blue sky law or
regulation of any governmental authority other than the Securities Act.
(f) Notwithstanding any other provision of this Section 6.1, to the
extent that any director, trustee, officer, partner, agent, employee, affiliate,
or other representative (current or former) of any indemnified party is a
witness in any action or proceeding, the indemnifying party agrees to pay to the
indemnified party all out-of-pocket expenses reasonably incurred by, or on the
behalf of, the indemnified party and such witness in connection therewith.
(g) All legal and other expenses incurred by or on behalf of any
Selling Investor in connection with investigating or defending any loss, claim,
expense, damage, liability, action or proceeding shall be paid by the Company in
advance of the final disposition of such investigation, defense, action or
proceeding within 30 days after the receipt by the Company of
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a statement or statements from the Selling Investor requesting from time to time
such payment, advance or advances. The entitlement of each Selling Investor to
such payment or advancement of expenses shall include those incurred in
connection with any action or proceeding by the Selling Investor seeking an
adjudication or award in arbitration pursuant to this Section 6.1. Such
statement or statements shall reasonably evidence such expenses incurred by the
Selling Investor in connection therewith.
(h) The termination of any proceeding by judgment, order, settlement
or conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, adversely affect the rights of any indemnified party to
indemnification hereunder or create a presumption that any indemnified party
violated any federal or state securities laws.
(i) (i) In the event that advances are not made pursuant to this
Section 6.1 or payment has not otherwise been timely made, each indemnified
party shall be entitled to seek a final adjudication in an appropriate court of
competent jurisdiction of the entitlement of the indemnified party to
indemnification or advances hereunder.
(ii) The Company and the Selling Investors agree that they
shall be precluded from asserting that the procedures and presumptions of this
Section 6.1 are not valid, binding and enforceable. The Company and the Selling
Investors further agree to stipulate in any such court that the Company and the
Selling Investors are bound by all the provisions of this Section 6.1 and are
precluded from making any assertion to the contrary.
(iii) To the extent deemed appropriate by the court, interest
shall be paid by the indemnifying party to the indemnified party at a reasonable
interest rate for amounts which the indemnifying party has not timely paid as
the result of its indemnification and contribution obligations hereunder.
(j) In the event that any indemnified party is a party to or
intervenes in any proceeding in which the validity or enforceability of this
Section 6.1 is at issue or seeks an adjudication to enforce the rights of any
indemnified party under, or to recover damages for breach of, this Section 6.1,
the indemnified party, if the indemnified party prevails in whole in such
action, shall be entitled to recover from the indemnifying party and shall be
indemnified by the indemnifying party against, any expenses incurred by the
indemnified party. If it is determined that the indemnified party is entitled
to indemnification for part (but not all) of the indemnification so requested,
expenses incurred in seeking enforcement of such partial indemnification shall
be reasonably prorated among the claims, issues or matters for which the
indemnified party is entitled to indemnification and for such claims, issues or
matters for which the indemnified party is not so entitled.
(k) The indemnity agreements contained in this Section 6.1 shall be
in addition to any other rights (to indemnification, contribution or otherwise)
which any indemnified party may have pursuant to law or contract and shall
remain operative and in full force and effect
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regardless of any investigation made or omitted by or on behalf of any
indemnified party and shall survive the transfer of any Eligible Securities by
any Investor.
ARTICLE VII
BENEFITS OF REGISTRATION RIGHTS
7.1. BENEFITS OF REGISTRATION RIGHTS. Each Holder shall give notice to
the Company of any transfer by it of Eligible Securities to a Permitted
Transferee, identifying the name and address of such Permitted Transferee and
the Eligible Securities so transferred, and accompanied by a signature page to
this Agreement pursuant to which such Permitted Transferee agrees to be bound by
the terms and conditions hereof.
ARTICLE VIII
MISCELLANEOUS
8.1. CAPTIONS. The captions or headings in this Agreement are for
convenience and reference only, and in no way define, describe, extend or limit
the scope or intent of this Agreement.
8.2. SEVERABILITY. If any clause, provision or section of this Agreement
shall be invalid or unenforceable, the invalidity or unenforceability of such
clause, provision or section shall not affect the enforceability or validity of
any of the remaining clauses, provisions or sections hereof to the extent
permitted by applicable law.
8.3. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of New York, without reference to
its rules as to conflicts or choice of laws.
8.4. MODIFICATION AND AMENDMENT. This Agreement may not be changed,
modified, discharged or amended, except by an instrument signed by all of the
parties hereto.
8.5. TERMINATION OF AGREEMENT. This Agreement and the rights granted
hereunder shall terminate on December 31, 2094, or such earlier date on which
the Operating Partnership may be dissolved in accordance with the Operating
Partnership Agreement.
8.6. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
8.7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding among the parties and supersedes any prior understandings
and/or written or oral agreements among them respecting the subject matter
herein.
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8.8. NOTICES. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery service
or by certified mail, return receipt requested, postage prepaid. Notices shall
be deemed given when actually received, which shall be deemed to be not later
than the next Business Day if sent by overnight courier or after five Business
Days if sent by mail. Notice to the Company shall be made to such party at
27600 Northwestern Highway, Suite 200, Southfield, Michigan 48034, Attn:
Chairman. Notice to each Holder shall be made to such party at the address set
forth under each such Holder's signature hereto, with a copy to Honigman Miller
Schwartz and Cohen, 2290 First National Building, Detroit, Michigan 48226-3583,
Attn: Richard Burstein, Esq.
8.9. JURISDICTION; VENUE. The parties to this Agreement hereby
irrevocably submit to the jurisdiction of any Michigan State or Federal court
and any appellate court from any thereof over any action or proceeding arising
out of or relating to this Agreement, and hereby irrevocably agree that all
claims in respect of such action or proceeding may be heard and determined in
such Michigan State court or in such Federal Court. The parties to this
Agreement hereby irrevocably waive, to the fullest extent permitted under law,
the defense of an inconvenient forum or improper venue to the maintenance of
such action or proceeding.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above written.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
--------------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Dennis Gershenson
------------------------------------
Dennis Gershenson
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
/s/ Joel Gershenson
-------------------------------------
Joel Gershenson
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
/s/ Bruce Gershenson
--------------------------------------
Bruce Gershenson
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
/s/ Richard Gershenson
--------------------------------------
Richard Gershenson
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
(signature pages continued)
15
/s/ Michael A. Ward
-----------------------------------
Michael A. Ward
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
MICHAEL A. WARD U/T/A, DATED
2/22/77, AS AMENDED
By: /s/ Michael A. Ward
---------------------------------
Trustee
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
WEST OAKS I
WEST OAKS DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
-----------------------------------
Dennis Gershenson, Partner
JACKSON CROSSING
RAMCO JACKSON ASSOCIATES LIMITED
PARTNERSHIP,
a Michigan limited partnership
By: RAMCO JACKSON, INC.,
a Michigan corporation,
its General Partner
By: /s/ Dennis Gershenson
---------------------------
Dennis Gershenson
Vice President
(signature pages continued)
16
SOUTHFIELD PLAZA + S-12
SOUTHFIELD PLAZA LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO VENTURES,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
--------------------------
Dennis Gershenson, Partner
ROSEVILLE PLAZA
ROSEVILLE PLAZA LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO VENTURES, a Michigan
co-partnership, its General Partner
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Partner
TEL-TWELVE SHOPPING CENTER
TEL-TWELVE MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: R.G. TEL-TWELVE CO.,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
(signature pages continued)
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CLINTON VALLEY MALL
STERLING MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO CONSUMERS MALL ASSOCIATES
LIMITED PARTNERSHIP, a Michigan limited
partnership, its General Partner
By: /s/ Dennis Gershenson
-----------------------------------
Dennis Gershenson, a General Partner
EASTRIDGE COMMONS
RAMCO LAPEER ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited partnership
By: RAMCO LAPEER, INC., a Michigan
corporation, its General Partner
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson,
Vice President
NEW TOWNE PLAZA
FORD SHELDON PLAZA COMPANY,
a Michigan limited partnership
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, a General Partner
(signature pages continued)
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LAKE ORION PLAZA
W & G REALTY COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
OAK BROOK SQUARE
RAMCO OAK BROOK SQUARE ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO OAK BROOK SQUARE, INC.,
a Michigan corporation, general
partner
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson, Vice President
FRASER TOWN CENTER
RAMCO FRASER DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, Partner
EDGEWOOD TOWN CENTER
RAMCO LANSING ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, Partner
(signature pages continued)
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NORTH TOWNE OFFICE MAX
RAMCO LEWIS ALEXIS ASSOCIATES,
a Michigan partnership
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
NAPLES TOWNE CENTER
RAMCO SOUTH NAPLES DEVELOPMENT,
a Florida general partnership
By: /s/ Dennis Gershenson
-----------------------------------
Dennis Gershenson, Partner
SPRING MEADOWS SHOPPING CENTER
RAMCO SPRING MEADOWS ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
------------------------------------
Dennis Gershenson, Partner
and
JCP REALTY, INC.,
a Delaware corporation
By: /s/ Philip O'Connell
-------------------------------------
Philip O'Connell
Its: Vice President
-----------------------------
(signature pages continued)
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TROY TOWNE CENTER
RAMCO SINGER ASSOCIATES LIMITED
PARTNERSHIP, an Ohio limited partnership
By: RAMCO TROY ASSOCIATES,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
------------------------------------
Dennis Gershenson, Partner
WEST ALLIS TOWN CENTER
WEST ALLIS SHOPPING CENTER ASSOCIATES,
a Wisconsin general partnership,
By: RAMCO ALLIS DEVELOPMENT COMPANY,
its Partner
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson, Partner
FERNDALE PLAZA
MICHIGAN SHOPPING CENTER VENTURE II
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO L & W PARTNERS,
a Michigan co-partnership, its general
partner
By: RAMCO GP,
a Michigan co-partnership, Partner
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
(signature pages continued)
21
WEST OAKS II
RAMCO NOVI DEVELOPMENT ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO NOVI DEVELOPMENT COMPANY,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
CLINTON VALLEY STRIP
KMW STERLING DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, Partner
KENTWOOD TOWNE CENTER
RAMCO KENTWOOD ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
---------------------------------------
Dennis Gershenson, Partner
(signature pages continued)
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Exhibit A
Tel-Twelve Mall Associates Limited Partnership
Ramco Fraser Development Company
Ramco Lapeer Associates Limited Partnership
Roseville Plaza Limited Partnership
Ramco South Naples Development
Southfield Plaza Limited Partnership
Ramco Singer Associates Limited Partnership
West Allis Shopping Center Associates
Ford Sheldon Plaza Company
Michigan Shopping Center Ventures II Limited Partnership
KMW Sterling Development Company
Ramco Kentwood Associates
Ramco Oak Brook Square Associates Limited Partnership
Sterling Mall Associates Limited Partnership
W & G Realty Company
West Oaks Development Company
Ramco Novi Development Associates Limited Partnership
JCP Realty
Ramco Spring Meadows Associates
Ramco Jackson Associates Limited Partnership
Ramco Lansing Associates
Ramco Lewis Alexis Associates
Joel Gershenson
Dennis Gershenson
Richard Gershenson
Bruce Gershenson
Michael A. Ward, Trustee u/t/a dated 2/22/77, as amended