EXHIBIT 10.1
TAX AGREEMENT
TAX AGREEMENT dated as of May 10, 1996 by and between Atlantic Realty
Trust, a Maryland real estate investment trust (the "Atlantic"), and RPS Realty
Trust, a Massachusetts business trust ("RPS").
WHEREAS, RPS has formed Atlantic, and on this day has (i) contributed
the Assets (as defined below) to Atlantic and, (ii) distributed the stock of
Atlantic to its shareholders.
WHEREAS, in order to induce RPS to distribute Atlantic's stock to RPS'
shareholders, Atlantic has agreed to assume certain tax liabilities of RPS
should they arise.
WHEREAS, it is RPS' intention to contest in good faith any Tax Contest
that is likely to result in the loss of RPS' ability to be treated as a real
estate investment trust under the Code.
WHEREAS, it is Atlantic's and RPS' intention to provide to RPS broad
and complete authority to contest, resolve and/or settle any Tax Contest
hereunder, as RPS in its sole discretion shall determine.
NOW, THEREFORE, the parties hereto, in consideration of the foregoing
and intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions. Each reference contained in this agreement to:
1.1 "Assets" shall mean those assets listed on Schedule A attached
hereto.
1.2 "Business Day" shall mean any day that is not a Saturday or Sunday,
or a day on which banks located in The City of New York are authorized or
required to be closed.
1.3 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.4 "Continuing Trustees" shall mean, as of any time, those trustees of
RPS then in office who were trustees of RPS immediately prior to the date
hereof; provided, however, if at any time the number of Continuing Trustees is
less than four and the remaining Continuing Trustees (by a majority vote) elect
such number of independent Trustees to become Continuing Trustees as may be
necessary to cause the number of Continuing Trustees to equal four, such
independent Trustee(s) shall also be deemed Continuing Trustees; provided,
further, Robert A. Meister shall not initially be deemed for this purpose to be
a Continuing Trustee.
1.5 "Final Determination" shall mean (a) a decision, judgment, decree,
or other order by any court of competent jurisdiction, which has become final
and is either no longer subject to appeal or for which a determination not to
appeal has been made and approved by RPS; or (b) a closing agreement made with
any Taxing Authority and approved by RPS.
1.6 "Assumed Tax" shall mean any Tax of RPS resulting from a Tax
Contest that arises as a consequence of the Internal Revenue Service's current
ongoing examination of RPS' tax returns (other than any Tax of RPS that relates
to actions or events occurring or any tax return position taken by RPS after the
date hereof).
1.7 "Tax or Taxes" shall mean U.S. federal, state or local income or
franchise taxes or other taxes imposed on or with respect to net income or
capital, together with any interest or penalties or additions to tax imposed
with respect thereto.
1.8 "Tax Contest" shall mean any audit, examination, suit, action, or
proceeding involving a Taxing Authority.
1.9 "Taxing Authority" shall mean any governmental authority having
jurisdiction over the assessment, determination, collection, or other imposition
of Tax.
SECTION 2. Assumed Tax, Refunds and Deficiency Dividends.
2.1 In General. Except as set forth in Section 2.4 below, Atlantic
hereby assumes and agrees to perform all obligations of RPS relating to the
Assumed Tax; provided, however, Atlantic shall have no obligation to perform or
make any payment in respect of any Assumed Tax until a Final Determination with
respect to such Assumed Tax has been made.
2.2 Amount of Assumed Tax Payment. Atlantic shall pay to the Applicable
Taxing Authority the amount of Assumed Tax required to be paid pursuant to the
Final Determination together with any interest, if any, or penalties, if any,
imposed by the Taxing Authority on such amount at least five days before such
amount is due to the applicable Taxing Authority.
2.3 Repayment of Assumed Tax Payment. The amount of any Assumed Tax
payment made by Atlantic pursuant to this agreement shall be repaid by RPS to
Atlantic upon the receipt by RPS of any refund of such tax and/or interest
and/or penalty.
2.4 Deficiency Dividend. RPS agrees that to the extent any Tax for
which Atlantic is obligated to pay pursuant to this Section 2 can be avoided
through the declaration and payment of a "deficiency dividend" as provided in
section 860 of the Code, it shall make such deficiency dividend. In such event
Atlantic's sole obligation with respect to its obligations hereunder shall be to
make a payment to RPS in an amount equal to the "deficiency dividend" described
in this Section 2.4.
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SECTION 3. Tax Contests.
3.1 In General. Subject to Section 3.2, RPS shall be entitled to
control and conduct any Tax Contests relating to the Assumed Tax. All costs of
any such Tax Contests are to be borne by Atlantic.
3.2 Settlements. RPS shall have the right to agree to the settlement of
any Tax Contests relating to any Assumed Tax without the consent of Atlantic.
RPS shall at all times provide to Atlantic promptly upon request all information
regarding the status of any Tax Contest relating to any Assumed Tax, including,
without limitation, any settlement discussions.
3.3 Notice of Tax Contests. RPS agrees to give notice to Atlantic
within 5 Business Days of the assertion or commencement of any Tax Contest with
regard to any Assumed Tax. The failure of RPS to notify Atlantic of any Tax
Contest within the time specified in the preceding sentence shall not relieve
Atlantic from any obligation to make a payment in respect of an Assumed Tax
under this agreement except to the extent Atlantic demonstrates that the defense
of such action is prejudiced thereby.
3.4 Control of Tax Contests. All Tax Contests relating to any Assumed
Tax, including, without limitation, any settlement of such Tax Contests, shall
be made solely by a committee of Continuing Trustees established by RPS for this
purpose.
SECTION 4. Right to Refunds. Atlantic shall be entitled to any refund
of any Tax attributable to any payments it has made pursuant to Section 2 hereof
to the extent not previously repaid pursuant to Section 2.3 and shall be paid
any such refund, including interest thereon, promptly upon receipt thereof by
RPS. Atlantic shall have the right to determine whether any claim for refund for
such Tax shall be made by or on behalf of RPS and shall notify RPS of its intent
to file such a claim.
SECTION 5. Asset Dispositions. Atlantic shall not dispose of any of its
material assets except in an arms' length transaction if, after giving effect to
such transfer, the assets of Atlantic would not be sufficient to satisfy its
obligations under this Agreement.
SECTION 6. Duration. The obligations and liabilities of Atlantic and
RPS arising under this agreement shall continue in full force and effect until
all such obligations hereunder have been met and such liabilities have been paid
in full, and shall be binding upon and inure to the benefit of the parties
hereto.
SECTION 7. Notices. All notices, consents and other communications
provided for herein shall be in writing and shall be deemed to have been duly
given when (a) delivered by hand, (b) sent by telecopier (with receipt
confirmed), provided that a copy is mailed by registered mail, return receipt
requested, or (c) when received by the addressee, if sent by Express Mail,
Federal Express or other express delivery service (receipt requested),
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in each case to the appropriate addresses and telecopier numbers set forth below
(or to such other addresses or telecopier numbers as a party may designate as to
itself by notice to the other parties):
(a) If to Atlantic:
Atlantic Realty Trust
747 Third Avenue
New York, New York 10017
Attention: Joel M. Pashcow
Telecopier: (212) 355-3080
with copies to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attention: Peter M. Fass, Esq.
Telecopier: (212) 856-7812
and
Wolf, Block, Schorr & Solis-Cohen
Packard Building, 12th Floor
S.E. Corner 15th & Chestnut Streets
Philadelphia, Pennsylvania 19102-2678
Attention: Elizabeth H. Mai, Esq.
Telecopier: (215) 977-2334
(b) If to RPS:
Ramco-Gershenson Properties Trust (f/k/a RPS
Realty Trust)
27600 Northwestern Highway
Suite 200
Southheld, Michigan 48034
Attention: Dennis Gershenson
Telecopier: (810) 350-9925
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with copies to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attention: Peter M. Fass, Esq.
Telecopier: (212) 856-7812
and
Wolf, Block, Schorr & Solis-Cohen
Packard Building, 12th Floor
S.E. Corner 15th & Chestnut Streets
Philadelphia, Pennsylvania 19102-2678
Attention: Elizabeth H. Mai, Esq.
Telecopier: (215) 977-2334
and
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226-3582
Attention: Richard Burstein, Esq.
Telecopier: (313) 250-7800
SECTION 8. Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 9. Counterparts. This agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, and such counterparts together shall constitute and be one and the
same instrument.
SECTION 10. Headings. The headings of the Sections of this agreement
have been inserted for convenience of reference only and shall in no way
restrict or otherwise modify any of the terms or provisions hereof.
SECTION 11. Amendments, Supplements, Etc. Neither this Tax Agreement
nor any of the terms hereof may be amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
enforcement of such change is sought.
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IN WITNESS WHEREOF, Atlantic and RPS have each caused this agreement to
be duly executed in New York, New York as of the date first set forth above.
RPS REALTY TRUST
/s/ Stephen R. Blank By: /s/ Joel M. Pashcow
- ----------------------------------- -------------------------------
Stephen R. Blank, Trustee, on
behalf of RPS Realty Trust Title: President
ATLANTIC REALTY TRUST
By: /s/ Joel M. Pashcow
-------------------------------
Title: President
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Schedule A
Mortgage Loans
Average Annual
Total Interest Rate
Principal RPS Net Date --------------
Amount of Funds Allowance Accrued Carrying Funded Maturity Current Accrued
Property Loan Advanced for loss Interest Amount (or Modified) Date Interest Interest
-------- ---- -------- -------- -------- ------ ------------- ---- -------- --------
Mt.Morris Commons
Genessee Twp., MI $2,700,000 $2,700,000 $(1,000,000) $ 52,923 $1,752,923 7/86 6/99 10.50% 2.00%
Copps Hills Plaza
Ridgefield, CT 9,752,284 3,563,948 (350,000) --- 3,213,948 9/92 7/96 6.00% .50%
Branhaven Plaza
Shopping Center
Branford, CT 8,714,313 2,800,000 --- 345,998 3,145,998 11/95 8/96 14.25% ---
1733 Massachusetts Ave.
Lexington, MA 2,200,000 2,200,000 --- 335,127 2,535,127 8/87 6/99 8.58% 1.42%
1-5 Wabash Ave.
Chicago, IL 2,850,000 2,850,000 --- --- 2,850,000 7/93 3/96 5.00% ---
Hylan Plaza
Shopping Center
Staten Island, NY 25,000,000 25,000,000 (6,000,336) 6,275,000 25,274,664 1/94 1/01 7.50% 4.50%
Industrial
Office Buildings
Rector Building
New York, NY 3,255,596 3,255,596 (2,000,000) --- 1,255,596 3/94 3/04 --- 6.00%
NCR Building
Century City, CA 4,818,493 468,493 (231,000) --- 237,493 7/93 12/95 10.00% ---
---------- ---------- ----------- ----------
A-1
Real Properties
9 North Wabash Avenue. The 9 North Wabash Avenue property is a
six-story building with approximately 52,000 square feet of leasable space
located in Chicago, Illinois. The property was acquired on July 7, 1993 by 9
North Wabash Corp., a wholly-owned subsidiary of RPS, and is owned by that
entity free and clear of any material liens or other encumbrances. The entire
Wabash property was leased to Lane Bryant, a women's apparel retailer, pursuant
to a lease which expired on June 30, 1995. However, on July 11, 1995, Lane
Bryant and RPS entered into an agreement pursuant to which Lane Bryant agreed to
remain in the property through December 31, 1995, at a reduced rental rate equal
to 7% of gross sales. Lane Bryant has occupied 100% of the leasable space for
each of the last five years. The property is currently vacant. RPS has entered
into an exclusive sales and lease arrangement with a local broker to sell or
lease this property. Real estate taxes on this property for the year ended
December 31, 1995 were approximately $142,000. The Company believes the property
is adequately covered by insurance. The Company's depreciable basis in the
property, as of December 31, 1995, is approximately $3,238,000, which is
depreciated using the straight-line method and a 39-year predictable life. As of
January 1, 1995, RPS' independent real estate appraisers appraised the value of
this property at $2,400,000. As of December 31, 1995, the Company recognized an
impairment of $800,000 to decrease the property's carrying value to more closely
approximate the appraised value. Upon consummation of the Ramco Acquisition, the
Company will adopt the liquidation basis of accounting at which time the
property will be classified as held for sale and will be stated at its net
realizable value. See Company Pro Forma Financial Statements. While RPS has held
preliminary discussions with third parties regarding the leasing of this
property, no binding or non-binding agreements, arrangements or understandings
exist with any such third parties.
Norgate Shopping Center. The Norgate Shopping Center is a one-story
shopping center located in Indianapolis, Indiana (Marion County). The property
was acquired on June 23, 1994 by Norgate Shops, Corp., a wholly-owned subsidiary
of RPS, and is owned by that entity free and clear of any material liens or
other encumbrances. The shopping center contains approximately 208,000 square
feet of leasable space, approximately 76% of which was leased and occupied as of
December 31, 1995. Major tenants (i.e., tenants who accounted for 10% or more of
the revenues at such property during the twelve month period ended December 31,
1995) are Kohl's Oakland, Inc., a department store retail chain, and
Consolidated Stores, Inc., a discount variety store retail chain. These two
tenants lease approximately 65,000 and 37,300 square feet, respectively, which
constitutes 31% and 18%, respectively, of the total leasable space. The Kohl's
Oakland lease expires in January 1999 and provides for annual rental payments of
approximately $211,000 and the Consolidated Stores lease is month to month and
provides for rental payments of approximately $140,000 on an annualized basis.
The Kohl's lease contains three 5-year tenant renewal options. Leases for
approximately 39,800 feet expired on or prior to December 31, 1995 and such
space is currently leased on a month-to-month basis, and leases for
approximately 29,500 feet are due to expire on or prior to December 31, 1996.
The average base rent per square foot paid by tenants at such property as of
December 31, 1995 excluding percentage rent and similar provisions was $3.46
(approximately $3.50 including percentage rent based on 1995 revenues). The
Company believes the property is adequately covered by insurance. The Company's
depreciable basis in the property, as of December 31, 1995, is approximately
$4,428,000, which is depreciated using the straight-line method and a 39-year
predictable life. On August 1, 1994, RPS' independent real estate appraisers
appraised the value of this property at $3,900,000, which is approximately
$528,000 less than its December 31, 1995
A-2
carrying value. The Company believes that the decline in value represented by
the appraisal is temporary because the property's carrying value is recoverable
through future operations and the eventual disposition thereof, on a going
concern basis of accounting. Upon consummation of the Ramco Acquisition, the
Company will adopt the liquidation basis of accounting at which time the
property will be classified as held for sale and will be stated at its net
realizable value. See Company Pro Forma following its due diligence review.
While RPS has held preliminary discussions with third parties regarding the sale
of this property to other potential buyers, no binding or non-binding
agreements, arrangements or understandings exist with any such third parties.
Limited Partnership Interest
Limited Partnership Interest. The Company is expected to own a 20%
limited partnership interest in a limited partnership that owns an 18-story
building with approximately 138,500 square feet of leasable space used for
office, showroom and retail purposes, located at 5 North Wabash Avenue in
Chicago, Illinois. As of June 30, 1995, the book value of the Company's 20%
limited partnership interest was $460,000. The Company will be entitled to 20%
of the net income (loss) and distributions from the limited partnership, but
will not be allocated such net income (loss) or distributions until the mortgage
on the property is repaid and, in addition, the borrower receives $5,000,000
from the disposition of the property. See Note 3(d) to the Financial Statements.
A-3