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EXHIBIT 10.2
AGREEMENT REGARDING EXERCISE OF REGISTRATION RIGHTS
THIS AGREEMENT REGARDING EXERCISE OF REGISTRATION RIGHTS (this
"Agreement") is made as of September 30, 1997 among RAMCO-GERSHENSON PROPERTIES
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"),
each of the Persons (collectively, the "Other Holders"; and with the Ramco
Principals, the "Holders") set forth on Exhibit A hereto, SPECIAL SITUATIONS RG
REIT, INC., a Maryland corporation ("Buyer"), and the Advancing Party (as
defined herein).
RECITALS:
WHEREAS, the Company, the Ramco Principals, the other Holders and JCP
Realty, Inc., a Delaware corporation ("JCP"), are parties to a Registration
Rights Agreement (the "Registration Rights Agreement") dated as of May 10, 1996
pursuant to which the Company has granted to the Holders (including the Ramco
Principals) and to JCP certain incidental registration rights exercisable in
accordance with the terms of the Registration Rights Agreement.
WHEREAS, the Company, Buyer and the Advancing Party have entered into a
Registration Rights Agreement dated as of the date hereof (the "Buyer
Registration Rights Agreement") pursuant to which the Company has granted to
Buyer and the Advancing Party certain shelf registration rights, requested
registration rights and incidental registration rights to have Registrable
Securities (as defined in the Buyer Registration Rights Agreement) registered
for sale in accordance with the terms of the Buyer Registration Rights
Agreement (for purposes of this Agreement, the term "Advancing Party" shall
have the meaning ascribed to such term in the Buyer Registration Rights
Agreement).
WHEREAS, the Holders, Buyer, the Advancing Party and the Company wish
to enter into this Agreement to set forth certain agreements of the parties
hereto with respect to the exercise of the incidental registration rights of
the Holders under the Registration Rights Agreement and of Buyer and/or the
Advancing Party under the Buyer Registration Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Exercise of Registration Rights. If (a) the Company proposes to
register for its own account any Company Stock (as defined in the Buyer
Registration Rights Agreement) under the Securities Act of 1933, as amended
(the "Securities Act"), in an Underwritten/Placed Offering (as defined in the
Buyer Registration Rights Agreement), and in connection with such proposed
offering (i) Buyer or the Advancing Party has exercised its rights under
Section 4.1 of the Buyer Registration Rights Agreement to require the Company
to include in such proposed offering Registrable Securities of Buyer or the
Advancing Party, and (ii) one or more of the Holders have exercised their
rights to include Eligible Securities (as defined in the Registration Rights
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Agreement) in such proposed offering, and (b) the underwriter or the managing
underwriter, as the case may be, of such Underwritten/Placed Offering informs
the Company of its belief that the amount of securities requested to be
included in such registration or offering exceeds the amount which can be sold
in (or during the time of) such offering without delaying or jeopardizing the
success of the offering (including the price per share of the securities to be
sold), then the number of shares of Registrable Securities of Buyer and/or the
Advancing Party and the number of shares of Eligible Securities of the Holders
to be included in such offering shall be reduced in order to permit such
underwriter or managing underwriter to complete successfully such offering
without delay as follows:
(a) First, any necessary reduction shall be apportioned among any
Eligible Securities held by the Ramco Principals which were proposed to be
included in the proposed offering upon exercise of their respective
registration rights under the Registration Rights Agreement pro rata based on
the number of securities proposed to be registered by such Ramco Principals;
provided, however, that if any Ramco Principal is deceased or has suffered a
divorce prior to filing of the registration statement with respect to the
proposed offering, the Eligible Securities held by such Ramco Principal or by
the estate or the heirs, beneficiaries or devisees of such Ramco Principal
shall not be subject to reduction pursuant to this subclause (a), but shall be
subject to reduction pursuant to subclause (b); and
(b) Second, to the extent any reduction pursuant to clause (a) above is
not sufficient, any further reduction required by the underwriter or the
managing underwriter of the proposed offering shall be apportioned among (i)
shares of Eligible Securities held by any Ramco Principal or by the estate or
the heirs, beneficiaries or devisees of such Ramco Principal to the extent such
Eligible Securities were not reduced on account of the proviso contained in
clause (a) above, (ii) shares of Eligible Securities held by the Other Holders
and (iii) shares of Registrable Securities held by Buyer and/or the Advancing
Party, which were proposed to be included in the proposed offering upon
exercise of the respective registration rights of such holders under the
Registration Rights Agreement or the Buyer Registration Rights Agreement, as
applicable, pro rata based on the number of securities proposed to be
registered by the holders referred to in the preceding clauses (i), (ii) and
(iii).
If JCP has requested that Eligible Securities be registered for sale in a
proposed Underwritten/Placed Offering in which any Holder and either Buyer or
the Advancing Party have elected to include Eligible Securities or Registrable
Securities, as the case may be, and the underwriter or the managing
underwriter, as the case may be, of such Underwritten/Placed Offering informs
the Company of its belief that the amount of securities requested to be
included in such registration or offering exceeds the amount which can be sold
in (or during the time of) such offering without delaying or jeopardizing the
success of the offering (including the price per share of the securities to be
sold), then the Eligible Securities proposed to be registered by JCP shall not
be reduced unless and until all securities proposed to be registered by Buyer,
the Advancing Party and the Holders have been reduced to zero.
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2. Non-Participation in Requested Registration. The Holders agree not to
exercise their respective incidental registration rights under the Registration
Rights Agreement in connection with a registration of Registrable Securities
effected by the Company pursuant to the exercise by Buyer or the Advancing
Party of the registration rights set forth in Article 2 or Article 3 of the
Buyer Registration Rights Agreement.
3. No Inconsistent Actions. Each of Buyer, the Advancing Party and the
Holders agree not to take any action inconsistent with the terms of Section 1
of this Agreement. To the extent that Buyer or the Advancing Party on the one
hand, or any or all of the Holders on the other hand, attempt to exercise any
rights under Section 4.1 of the Buyer Registration Rights Agreement or Section
3.1 of the Registration Rights Agreement (as applicable) in a manner
inconsistent with the terms of this Agreement, the Company shall have the right
to refuse to register Registrable Securities or Eligible Securities, as the
case may be, under such sections of such agreements so as to give effect to the
terms of this Agreement.
4. Specific Performance. The parties hereto acknowledge and agree that
money damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that any party may, in its sole discretion, apply to any
court of law or equity of competent jurisdiction (without posting any bond or
other security) for specific performance and for other injunctive relief in
order to enforce or prevent violation of the provisions of this Agreement.
5. Miscellaneous.
(a) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other parties. Copies of executed
counterparts transmitted by telecopy, telefax or other electronic transmission
service shall be considered original executed counterparts for purposes of this
Section 5, provided the receipt of such counterparts is confirmed.
(b) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE
CHOICE OF LAW PRINCIPLES THEREOF.
(c) Entire Agreement. This Agreement (including agreements
incorporated herein) contains the entire agreement between the parties with
respect to the subject matter hereof and there are no agreements or
understandings between the parties other than those set forth or referred to
herein. This Agreement is not intended to confer upon any person not a party
hereto (and their successors and assigns) any rights or remedies hereunder.
(d) Notices. All notices and other communications hereunder shall be
sufficiently given for all purposes hereunder if in writing and delivered
personally, sent by documented overnight delivery service or, to the extent
receipt is confirmed, telecopy, telefax or other electronic transmission
service to the appropriate address or number as set forth below. Notices to
the Company shall be addressed to:
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Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48043
Attention: Chief Executive Officer
Telecopy Number: (248) 350-9900
Facsimile Number: (248) 350-2469
with a copy to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226
Attention: Richard J. Burstein and Donald J. Kunz
Telephone Number: (313) 256-7800
Facsimile Number: (313) 962-0176
or at such other address and to the attention of such other person as the
Company may designate by written notice to the Holders, Buyer and the Advancing
Party. Notice to each of the Holders shall be addressed to such Holder at the
following address:
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
Attention: Chief Executive Officer
Telecopy Number: (248) 350-9900
Facsimile Number: (248) 350-2469
with a copy to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226
Attention: Richard J. Burstein and Donald J. Kunz
Telephone Number: (313) 256-7800
Facsimile Number: (313) 962-0176
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or at such other address and to the attention of such other person as the
applicable Holder may designate by written notice to the Company, Buyer and the
Advancing Party. Notices to Buyer and the Advancing Party shall be addressed
to:
Special Situations RG REIT, Inc.
1221 Avenue of the Americas
New York, N.Y. 10020
Attention: Operations Controller, 22nd Floor
Telephone Number: (212) 762-4000
Facsimile Number: (212) 762-7536
with a copy to:
Rogers & Wells
200 Park Avenue
New York, New York 10166
Attention: Allen Curtis Greer, II
Telephone Number: (212) 878-8000
Facsimile Number: (212) 878-8375
or at such other address and to the attention of such other person as Buyer or
the Advancing Party may designate by written notice to the Company and the
Holders.
(e) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. To the extent that any party hereto assigns
any rights it may have under the Registration Rights Agreement or the Buyer
Registration Rights Agreement, as the case may be, such assignment, and the
exercise of any registration rights under the applicable agreement, shall be
subject to the terms and conditions of this Agreement. The Advancing Party
shall, without any assignment or any further act or deed or the execution or
delivery of any further instrument or agreement, succeed to the rights and
obligations of Buyer and the Advancing Party upon the Reorganization (as
defined in the Buyer Registration Rights Agreement).
(f) Headings. The Section and other headings contained in
this Agreement are inserted for convenience of reference only and will not
affect the meaning or interpretation of this Agreement.
(g) Amendments and Waivers. This Agreement may not be
modified or amended except by an instrument or instruments in writing signed by
the party against whom enforcement of any such modification or amendment is
sought. Any party hereto may, only by an instrument in writing, waive
compliance by any other party hereto with any term or provision hereof on the
part of such other party hereto to be performed or complied with. The waiver
by any party hereto of a breach of any term or provision hereof shall not be
construed as a waiver of any subsequent breach.
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(h) Interpretation; Absence of Presumption. For the
purposes hereof, (i) words in the singular shall be held to include the plural
and vice versa and words of one gender shall be held to include the other
gender as the context requires (ii) the terms "hereof", "herein", and
"herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, paragraph or other references are to
the Sections, paragraphs, or other references to this Agreement unless
otherwise specified, (iii) the words "including" and words of similar import
when used in this Agreement shall mean "including, without limitation," unless
the context otherwise requires or unless otherwise specified, (iv) the word
"or" shall not be exclusive, and (v) provisions shall apply, when appropriate,
to successive events and transactions.
This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the party
drafting or causing any instrument to be drafted.
(i) Severability. Any provision hereof which is invalid
or unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
THE COMPANY:
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Authorized Signature
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Name:
Title:
HOLDERS:
/s/ Dennis Gershenson
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Dennis Gershenson
/s/ Joel Gershenson
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Joel Gershenson
/s/ Bruce Gershenson
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Bruce Gershenson
/s/ Richard Gershenson
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Richard Gershenson
/s/ Michael A. Ward
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Michael A. Ward
MICHAEL A. WARD U/T/A, DATED 2/22/77,
AS AMENDED
By: /s/ Michael A. Ward
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Michael A. Ward, Trustee
WEST OAKS I
WEST OAKS DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
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Dennis Gershenson, Partner
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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
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Dennis Gershenson
Vice President
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
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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
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Dennis Gershenson, Partner
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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
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Dennis Gershenson, Partner
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
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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
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Dennis Gershenson, Vice
President
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NEW TOWNE PLAZA
FORD SHELDON PLAZA COMPANY,
a Michigan limited partnership
By: /s/ Dennis Gershenson
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Dennis Gershenson, a General Partner
LAKE ORION PLAZA
W & G REALTY COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
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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
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Dennis Gershenson, Vice
President
FRASER TOWN CENTER
RAMCO FRASER DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
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Dennis Gershenson, Partner
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EDGEWOOD TOWN CENTER
RAMCO LANSING ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
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Dennis Gershenson, Partner
NORTH TOWNE OFFICE MAX
RAMCO LEWIS ALEXIS ASSOCIATES,
a Michigan partnership
By: /s/ Dennis Gershenson
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Dennis Gershenson, Partner
NAPLES TOWNE CENTER
RAMCO SOUTH NAPLES DEVELOPMENT,
a Florida general partnership
By: /s/ Dennis Gershenson
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Dennis Gershenson, Partner
SPRING MEADOWS SHOPPING CENTER
RAMCO SPRING MEADOWS ASSOCIATES,
a Michigan co-partnership, its General Partner
By: /s/ Dennis Gershenson
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Dennis Gershenson, Partner
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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
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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
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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
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Dennis Gershenson, Partner
(Signatures
(Signatures continued on page)
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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:
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Dennis Gershenson, Partner
CLINTON VALLEY STRIP
KMW STERLING DEVELOPMENT COMPANY,
a Michigan co-partnership
By:
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Dennis Gershenson, Partner
KENTWOOD TOWNE CENTER
RAMCO KENTWOOD ASSOCIATES,
a Michigan co-partnership
By:
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Dennis Gershenson, Partner
THE ADVANCING PARTY:
MS REAL ESTATE SPECIAL SITUATIONS INC.
As Attorney-In-fact for each of the clients
set forth on Exhibit B hereto:
By:
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Name:
Title:
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(Signatures continued from previous page)
BUYER:
SPECIAL SITUATIONS RG REIT, INC.
By: /s/ Authorized Signature
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Name:
Title:
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