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EXHIBIT 2.1
FIRST AMENDMENT
TO
AMENDED AND RESTATED MASTER AGREEMENT
This First Amendment, dated as of March 19, 1996 (the "First
Amendment"), to the Amended and Restated Master Agreement, dated as of December
27, 1995 (the "Master Agreement"), among RPS Realty Trust, a Massachusetts
business trust (the "Trust"), Ramco-▇▇▇▇▇▇▇▇▇▇, Inc., a Michigan corporation
("Ramco"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustee U/T/A dated 2/22/77, as
amended (collectively, the "Ramco Principals"), Ramco ▇▇▇▇▇▇▇▇▇▇ Properties,
L.P., a Delaware limited partnership (the "Operating Partnership") and the Ramco
affiliates listed on Schedule A to the Master Agreement. Capitalized terms used
but not defined herein shall have the respective meanings set forth in the
Master Agreement.
WHEREAS, the parties desire to amend the Master Agreement in
accordance with Section 12.5 of the Master Agreement and the terms of this First
Amendment.
NOW, THEREFORE, in consideration of these premises and the
mutual covenants, conditions and promises hereinafter set forth, the parties
agree as follows:
1. Section 2 is hereby amended by replacing the date "March
31, 1996" in the last line of such Section with the date "May 31, 1996."
2. The Tax Agreement attached as Exhibit Q to the Master
Agreement is hereby deleted and replaced in its entirety by the Tax Agreement
attached hereto as Schedule 1.
3. Section 3.3(h) is hereby amended by deleting the number
$5,000,000 in the first sentence thereof and replacing it with the number
$3,200,000. The parties hereto acknowledge and agree that this amendment, as
well as the amendments contemplated by Sections 7 and 8 hereof, are being
effected to memorialize that the debt set forth on Schedule 6.16 of the Master
Agreement, as modified by Section 15 hereof, includes amounts borrowed by Ramco
Tel-Twelve Co., the proceeds of which were used to pay the "Media Play
Allowance," as such term is defined in the Contribution Agreement by and between
Ramco Tel-Twelve Co. and the Operating Partnership, dated December 29, 1994 (the
"Tel-Twelve Agreement"). The Ramco Principals represent and warrant that the
Media Play Allowance was paid in full and such parties agree that the Tel-Twelve
Agreement shall be amended prior to the Closing of the Ramco Acquisition to
reflect that the owner under the Tel-Twelve Agreement has no obligation to pay
the Media Play Allowance.
4. Section 4.5(c) is hereby amended and restated in its
entirety as follows:
"(c) Ramco has delivered to the Trust an adjusted unaudited
statement of pro forma funds from operations and cash
available from operating activities from the Operating
Partnership for the 12-month period ended September 30, 1996
which is based on pro forma net income from the Operating
Partnership for the twelve months ended September 30, 1995, as
adjusted to reflect minimum rents from Qualifying Leases in
place as of February 20, 1996 during the period from October
1, 1995 through September 30, 1996 (the "UPDATED DISTRIBUTION
PRO FORMA"). The Updated Distribution Pro Forma is
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true and correct in all material respects and the adjustments
reflected in such financial statement will have been properly
applied to historical amounts, except that no representation
or warranty is made with respect to results from operations
from the RPS Properties. "
5. (a) Section 4.7(b) is hereby amended by (i) deleting the
terms "Magic Page Leases" and "1994 Leases" in all places where they appear in
such section and replacing them with the term "1995 Leases" and (ii) deleting
the dates December 31, 1994 and December 1, 1995 and replacing them with
February 20, 1996 and March 1, 1996, respectively.
(b) Schedule 4.7(b) is hereby deleted and replaced with
Schedule 2 attached hereto.
6. Section 6.15 is hereby amended by deleting the date "March
31, 1996" in the fourth and sixth sentences thereof and replacing it with the
date "May 31, 1996."
7. Section 6.16(a) is hereby amended by deleting the amount
$5,000,000 in the first sentence thereof and replacing it with the amount
$3,200,000.
8. Section 6.16(b) is hereby amended by deleting the amount
$5,000,000 in the second sentence thereof and replacing it with the amount
$3,200,000.
9. A new Section 6.28 is hereby added to the Master Agreement
and shall read in its entirety as follows:
"Certain Agreements. The parties shall cause the Ramco Agreements, the
RPS Contribution Agreement, the Ramco Stock Contribution Agreement and
the Closing Conditions Agreement to be amended to extend any
termination date set forth in such agreements until May 31, 1996."
10. A new Section 6.29 is hereby added to the Master Agreement
and shall read in its entirety as follows:
"Tax Committee. Notwithstanding anything to the contrary set
forth in this Agreement, at or prior to the Closing, the Trust will
establish a special tax committee (the "Tax Committee"), consisting
entirely of Continuing Trustees, who will be delegated complete and
absolute discretion to settle or otherwise dispose of the RPS Tax
Issues pursuant to the Tax Agreement."
11. A new Section 8.126 is hereby added to the Master
Agreement and shall read in its entirety as follows:
"RPS Tax Issues" -- shall mean (i) the facts and circumstances
relating to the fact that during the third quarter of 1994, the Trust
had more than 25% of the value of its gross assets in Treasury ▇▇▇▇
repurchase obligations which the IRS may view as a non-qualifying asset
for purposes of satisfying an asset qualification test applicable to
REITs and (ii) the IRS examination of the Trust's 1991-1994 tax
returns.
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12. Schedule 1.7(a)(ii) is hereby amended by adding the
following parenthetical immediately following the first recitation of the date
"December 31, 1994" therein: "(excluding any net operating income attributable
to the PharMor of Virginia, Inc. lease for such period)".
13. Schedule 3.3 to the Master Agreement is hereby updated by
substituting in its place Schedule 3 attached hereto.
14. Schedule 3.3(j) is hereby amended so that all dates set
forth therein are appropriately amended to reflect the dates of the financial
statements included in the Proxy Statement.
15. Schedule 6.16 to the Master Agreement is hereby updated by
substituting in its place Schedule 4 attached hereto.
16. The Acquisition Amendment attached as Exhibit B to the
Master Agreement is hereby deleted in its entirety and replaced with the
Acquisition Amendment attached hereto as Schedule 5.
17. The Master Agreement, except as amended and modified
herein, is in all respects ratified and confirmed, and the terms, covenants and
agreements therein shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this First
Amendment and caused the same to be delivered on their behalf on the day and
year first above written.
RPS REALTY TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman and President
RAMCO ▇▇▇▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ Gershensen
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Name: ▇▇▇▇▇▇ Gershensen
Title: Treasurer
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ U/T/A DATED 2/22/77,
AS AMENDED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇ as trustee
U/T/A dated 2/22/77, as amended
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RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P.
By: RAMCO REIT, INC., its
General Partner
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
RAMCO CONTRIBUTING PARTIES TO THE EXTENT OF
SECTIONS 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12
KM BLUE ASH DEVELOPMENT COMPANY, an Ohio
co-partnership
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
LA II GROUP, an Ohio general partnership
By: RAMCO ▇▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES,
a Michigan general partnership,
its Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
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MICHIGAN SHOPPING CENTER VENTURES II
LIMITED PARTNERSHIP, a Michigan limited
partnership
By: RAMCO L & W PARTNERS
a Michigan co-partnership,
its General Partner
By: RAMCO CP, a Michigan
co-partnership, its Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
RAMCO CANTON CO.,
a Delaware general partnership
By: ▇▇▇▇ ▇▇▇▇▇▇▇ PLAZA COMPANY,
a Michigan limited partnership,
its Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
General Partner
RAMCO FRASER DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
S-3
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RAMCO ▇▇▇▇▇▇▇ DELAWARE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: RAMCO ▇▇▇▇▇▇▇, INC.,
a Michigan corporation,
its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Vice President
RAMCO KENTWOOD ASSOCIATES,
a Michigan co-partnership
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
RAMCO LANSING ASSOCIATES,
a Michigan co-partnership
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
RAMCO LAPEER ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited partnership
By: RAMCO LAPEER, INC., a Michigan
corporation, its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Vice President
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RAMCO NOVI I CO.,
a Delaware general partnership
By: WEST OAKS DEVELOPMENT
COMPANY, a Michigan co-partnership,
its Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
RAMCO NOVI II CO.,
a Delaware general partnership
By: RAMCO NOVI DEVELOPMENT ASSOCIATES
LIMITED PARTNERSHIP, a Michigan
limited partnership, its Partner
By: RAMCO NOVI DEVELOPMENT COMPANY,
a Michigan co-partnership, its
General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
RAMCO OAK BROOK SQUARE ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited partnership
By: RAMCO OAK BROOK SQUARE, INC., a
Michigan corporation, its General
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Vice President
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RAMCO ORION CO.,
a Delaware general partnership
By: W & G REALTY COMPANY,
a Michigan co-partnership, its
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
RAMCO ROSEVILLE CO.,
a Delaware general partnership
By: ROSEVILLE PLAZA LIMITED PARTNERSHIP
By: RAMCO VENTURES, a Michigan
co-partnership, its General
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
RAMCO SINGER ASSOCIATES LIMITED
PARTNERSHIP, an Ohio limited partnership
By: RAMCO ▇▇▇▇ ASSOCIATES, a Michigan
co-partnership, its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
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RAMCO SOUTHFIELD CO.,
a Delaware general partnership
By: SOUTHFIELD PLAZA LIMITED PARTNERSHIP,
a Michigan limited partnership, its
Partner
By: RAMCO VENTURES, a Michigan
co-partnership, its General
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
RAMCO STERLING MALL CO.,
a Delaware general partnership
By: STERLING MALL ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited
partnership, its Partner
By: RAMCO CONSUMER MALL ASSOCIATES
LIMITED PARTNERSHIP, a Michigan
limited partnership, its
General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
General Partner
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▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LIMITED PARTNERSHIP, a
Michigan limited partnership
By: RAMCO VENTURES, a Michigan general
partnership, its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
SPRING ▇▇▇▇▇▇▇ SHOPPING CENTER
ASSOCIATES, an Ohio general partnership
By: RAMCO SPRING ▇▇▇▇▇▇▇ ASSOCIATES, a
Michigan co-partnership, its Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
WEST ALLIS SHOPPING CENTER ASSOCIATES, a
Wisconsin general partnership
By: RAMCO ALLIS DEVELOPMENT COMPANY, a
Michigan co-partnership, its Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
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RAMCO SOUTH NAPLES DEVELOPMENT,
a Florida general partnership
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
RAMCO STERLING STRIP CO.,
a Delaware general partnership
By: KMW STERLING DEVELOPMENT COMPANY, a
Michigan co-partnership, its partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
RAMCO TEL-TWELVE CO.,
a Delaware general partnership
By: TEL-TWELVE MALL ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited
partnership, its partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Partner
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Schedule 1
TAX AGREEMENT
TAX AGREEMENT dated as of ____ ___, 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
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Continuing Trustees to equal four, such independent Trustees(s) shall also be
deemed Continuing Trustees.
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
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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.
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.
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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), 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
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Battle ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
Wolf, Block, ▇▇▇▇▇▇ & ▇▇▇▇▇-▇▇▇▇▇
Packard Building, 12th Floor
S.E. ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to RPS:
Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust (f/k/a)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
4
17
with copies to:
Battle ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
Wolf, Block, ▇▇▇▇▇▇ & ▇▇▇▇▇-▇▇▇▇▇
Packard Building, 12th Floor
S.E. ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
Honigan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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.
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.
5
18
RPS REALTY TRUST
By:
---------------------------------
Title:
------------------------------
ATLANTIC REALTY TRUST
By:
---------------------------------
Title:
------------------------------
6
19
SCHEDULE A
MORTGAGE LOANS
Average Annual
Total Interest Rate
Principal RPS Net Date ------------------
Amount of Funds Allowance Accrued Carrying Funded (or Maturity Current Accrued
Property Loan Advanced for loss Interest Amount Modified) Date Interest Interest
-------- --------- -------- --------- -------- -------- ---------- -------- -------- --------
SHOPPING CENTERS
Mt. ▇▇▇▇▇▇ Commons
Genessee Township, $ 2,700,000 $ 2,700,000 $(1,000,000) $ 52,923 $ 1,752,923 7/86 6/99 10.50% 2.00%
MI
Copps Hills Plaza
Ridgefield, CT 9,752,284 3,563,948 (350,000) -- 3,213,948 9/92 7/96 6.00% .50%
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ 8,714,313 2,800,000 -- 345,998 3,145,998 11/95 8/96 14.25% --
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ 2,200,000 2,200,000 -- 335,127 2,535,127 8/87 6/99 8.58% 1.42%
Lexington, MA
▇-▇ ▇▇▇▇▇▇ ▇▇▇.
Chicago 2,850,000 2,850,000 -- -- 2,850,000 7/93 3/96 5.00% --
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ 25,000,000 25,000,000 (6,000,336) 6,275,000 25,274,664 1/94 1/01 7.50% 4.50%
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ 3,255,596 3,255,596 (2,000,000) -- 1,255,596 3/94 3/04 -- 6.00%
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ 4,818,493 468,493 (231,000) -- 237,493 7/93 12/95 10.00% --
--------- --------- ---------
A-1
20
REAL PROPERTIES
▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇. The ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇, a women's apparel retailer, pursuant
to a lease which expired on June 30, 1995. However, on July 11, 1995, Lane
▇▇▇▇▇▇ and RPS entered into an agreement pursuant to which Lane ▇▇▇▇▇▇ agreed to
remain in the property through December 31, 1995, at a reduced rental rate equal
to 7% of gross sales. Lane ▇▇▇▇▇▇ 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 (▇▇▇▇▇▇ 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
A-2
21
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 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. 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 ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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
22
SCHEDULE 2
I. 1995 LEASES NO LONGER VALID,
SUBSISTING OR IN FULL FORCE AND EFFECT.
---------------------------------------
None.
II. AMENDMENTS OR MODIFICATIONS TO
1995 LEASES FROM 1/11/95 TO 12/1/95.
------------------------------------
Cards Et Cetera (Clinton Valley Strip) - 12/21/94
Blockbuster Video (▇▇▇▇▇▇▇▇▇) - 12/20/94
MC Sporting Goods (Roseville) - 6/5/95
El-Bee Shoes (▇▇▇▇) - 4/5/95
Payless Shoe Source (Clinton Valley Strip) - 2/1/95
Payless Shoe Source (New Towne) - 5/4/95
Dollar Bills (West Allis) - 4/12/95
S & K Brands (Oak Brook) - 5/8/95
Dollar Tree (Southfield Plaza) - 5/8/95
House of Designs (▇▇▇▇) - 6/6/95
Mail Boxes Etc. (West Oaks II) - 6/27/95
Mattress Discounters (West Oaks II) - 5/25/95
Dots (▇▇▇▇▇▇▇▇▇) - 7/11/95
Dress Barn (Oak Brook) - 7/11/95
All for One (▇▇▇▇) - 7/31/95
Secretary of State (▇▇▇▇▇▇▇) - 8/21/95
Care Center at Crossing (▇▇▇▇▇▇▇) - 8/21/95
The Book Place (Lake Orion) - 9/26/95
▇▇▇▇▇ B's (Tel-Twelve) - 10/9/95
▇▇. ▇▇▇▇▇▇-One Day Denture (▇▇▇▇▇▇▇) - 10/23/95
23
Stride Rite (Tel-Twelve) - 10/18/95
Ferran Florist (Fraser) - 10/23/95
II(A). AMENDMENTS OR MODIFICATIONS TO
1995 LEASES FROM 12/1/95 TO 2/20/96.
------------------------------------
The Apple Tree (Spring ▇▇▇▇▇▇▇) - 12/20/95
A & W (Tel-Twelve) - 12/21/95
Radio Shack (Ferndale) - 12/21/95
Jewelry Exchange (Roseville) - 12/22/95
▇▇▇▇▇ Beauty Supply (Spring ▇▇▇▇▇▇▇) - 12/29/95
Selectcare (DMHC) (Clinton Valley Consumer) - 1/10/96
▇▇▇▇▇▇'▇ Luggage (Kentwood) - 1/30/96
NEW 1995 LEASES FROM 12/1/95 - 2/20/96.
---------------------------------------
Sears Hardware (▇▇▇▇ ▇▇▇▇▇ Center) - 12/7/95
G N C (New Towne Plaza) - 12/20/95
Sun Optics (▇▇▇▇▇▇▇ Crossing) - 12/20/95
Altegra Credit Company (Kentwood) - 12/29/95
Cambridge Books (New Towne Plaza) - 12/29/95
Golf U.S.A. (▇▇▇▇ ▇▇▇▇▇ Center) - 2/2/96
President Tuxedo (▇▇▇▇▇▇▇▇▇ Commons) - 2/7/96
Shastar Rent to Own (▇▇▇▇) - 11/7/95
Harmony House (Clinton Valley) - 11/22/95
III. 1995 LEASE TENANTS NO LONGER IN ACTUAL OCCUPANCY AS OF 2/20/96.
---------------------------------------------------------------
1. Silk Corp (Kentwood)
-2-
24
2. ▇▇▇ ▇▇▇▇ (Spring ▇▇▇▇▇▇▇)
III(A). 1995 LEASE TENANTS NO LONGER IN
ACTUAL OCCUPANCY AS OF 2/20/96.
-------------------------------
Fashion Bug (West Oaks I)
Silk Corp (New Towne Plaza)
▇▇▇▇▇▇▇ Shoes (Tel-Twelve Mall)
IV. 1995 LEASE TENANTS MORE THAN 30 DAYS IN ARREARS IN PAYMENT
OF ANY AMOUNT DUE UNDER THE 1994 LEASE AS OF 12/1/95.
-----------------------------------------------------
(Does not include 1994 unpaid obligations where audits have been
requested or where a billing sum is in dispute.)
Tel-Twelve
----------
Bagelmakers
Gigi's Ice Cream
Shish Kabob
▇▇▇▇▇▇▇ Shoes
Southfield Plaza
----------------
Luxor Shoes
▇▇▇▇▇▇▇▇▇ Shopping Center
-------------------------
Tubby's
Your Cleaners
Edgewood Towne Center
---------------------
Fashion Place
Piccadilly Peddler
▇▇▇▇▇▇▇ Crossing
-----------------
Paka Plaza Pet Center
Kelly's Home Decor
Ferndale Plaza
--------------
Dresses-4-Less
Southfield Plaza/12
-------------------
Southfield Meat & Deli
-3-
25
IV. 1995 LEASE TENANTS MORE THAN 30 DAYS IN
ARREARS IN PAYMENT OF ANY AMOUNT DUE
UNDER THE 1995 LEASES AS OF 3/16/96
-----------------------------------
(Does not include unpaid obligations where audits have been requested
or where a billing sum is in dispute.)
Tel-12
Bagelmakers
Shish Kabob
▇▇▇▇▇▇▇ Shoes
New Towne
Silkcorp
▇▇▇▇▇▇▇▇▇
Tubby's
Your Cleaners
Kentwood Towne Centre
Silkcorp
▇▇▇▇▇▇▇ Crossing
Care Center at the Crossing
Paka Plaza Pet Center
Roseville Plaza
Haircuts
Naples Towne Center
Ming Wah Restaurant
Southfield Plaza
L'Elite Bridal Boutique
Edgewood
Piccadilly Peddler
▇▇▇▇ Town Centre
▇▇▇▇▇▇▇'▇
West Oaks II
Budget Frame
West Allis Towne Centre
▇▇▇▇▇▇▇ Auto Supply
26
Schedule 3
ACTUAL BALANCE
LENDER 12/31/95
Tel-Twelve Mall Lincoln $ 34,000,000
Huntington Bank 37,491
▇▇▇▇▇▇▇ Crossing NBD 25,106,215
Huntington Bank 21,226
Southfield Plaza Lincoln 7,550,000
Roseville Plaza Lincoln 9,850,000
NBD 905,000
West Oaks I Lincoln 5,000,000
Edgewood Towne Center Lincoln 4,215,000
Clinton Valley Mall Lincoln 7,300,000
First of America 400,000
First of America 151,308
Land Contract 198,350
New Towne Plaza Lincoln 4,705,000
NBD 1,588,000
Lake Orion Plaza Lincoln 2,950,000
NBD 1,431,000
27
Schedule 4
RAMCO PROPERTY DEBT THAT WILL BE REPAID
12/31/95
PRINCIPAL
PROPERTY LENDER BALANCE
Tel-Twelve Mall Lincoln National $34,000,000
Huntington Bank 37,491
Fraser Shopping Center Bank of Boston 2,171,417
▇▇▇▇▇▇▇▇▇ Commons Lincoln National 6,800,000
NBD Bank, N.A. 674,000
Naples Towne Center Bank of Boston 938,650
▇▇▇▇ ▇▇▇▇▇ Center BancOne 7,104,288
West Allis Shopping Center Bank of Boston 14,310,000
West Oaks I Lincoln National 5,000,000
West Oaks II Travelers(1) 9,441,892
Spring ▇▇▇▇▇▇▇ Place Travelers(1) 11,874,769
New Towne Plaza Lincoln National 4,705,000
NBD Bank, N.A. 1,588,000
Ferndale Plaza Sun Life 1,759,879
Clinton Valley Strip Center Northwestern Mutual Life 1,616,656
Oak Brook Square Bank of Boston 1,244,600
Clinton Valley Mall Lincoln National 7,300,000
First of America 400,000
First of America 151,308
Land Contract 198,350
Lake Orion Plaza Lincoln National 2,950,000
NBD Bank, N.A. 1,431,000
▇▇▇▇▇▇▇ Crossing NBD Bank, N.A. 25,106,215
Huntington Bank 21,226
Edgewood Towne Center Lincoln National 4,215,000
OfficeMax Center Michigan National Bank 1,950,000
Roseville Plaza Lincoln Bank 9,850,000
NBD Bank, N.A. 905,000
Southfield Plaza Lincoln National 7,550,000
Unsecured Ramco Group Debt 3,200,000
--------
(1) Source of pay down will be line of credit.
28
Schedule 5
ACQUISITION AMENDMENT
AMENDMENT dated , 1996 to Amended and Restated
Declaration of Trust of RPS Realty Trust (the "Trust") dated October 14, 1988
(the "Declaration of Trust");
WHEREAS, Article VIII, Section 2 of the Declaration of Trust
provides for procedures governing the amendment of the Declaration of Trust;
WHEREAS, the Trustees have determined that it is in the best
interests of the Trust and its shareholders to cause the Trust to (i) increase
certain quorum percentage requirements in connection with meetings of the Board
of Trustees; (ii) establish a Nominating Committee and an Advisory Committee of
the Board of Trustees and (iii) change the name of the Trust; and
WHEREAS, the Trustees have determined to propose (i) the
addition of new Sections to Article III of the Declaration of Trust to provide
for the creation of a Nominating Committee and an Advisory Committee of the
Board of Trustees, (ii) an amendment to Article IV, Section 8 of the Declaration
of Trust to increase certain quorum percentage requirements in connection with
meetings of the Board of Trustees and (iii) an amendment to Article I, Section 1
of the Declaration of Trust to change the name of the Trust.
NOW, THEREFORE, the Trustees have adopted the following
amendments to the Declaration of Trust, which amendments respectively shall
become effective upon approval thereof by the holders of a majority of the
Trust's issued and outstanding shares of beneficial interest:
1. Article III of the Declaration of Trust is amended by
adding the following Sections to the end thereof (new language appearing in
italics):
"SECTION 14. NOMINATING COMMITTEE. The Board of Trustees shall
appoint from among its members a Nominating Committee, which shall
consist of at least three members, all of whom shall be Independent
Trustees, and which shall nominate persons for election to the Board of
Trustees. The Nominating Committee will consider nominees recommended
by other shareholders in accordance with Article IV, Section 1."
"SECTION 15. ADVISORY COMMITTEE. The Board of Trustees shall
appoint an Advisory Committee, which shall
29
consist of three Persons who are not Trustees, and which shall have the
power to consult with and advise the Board of Trustees as required. The
initial members of the Advisory Committee shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇."
2. The second paragraph of Article IV, Section 1 of the
Declaration of Trust is amended as follows (new language appearing in italics):
"The number of Trustees shall be not less than three nor more
than fifteen, as fixed from time to time by the Board of Trustees.
Unless otherwise fixed by the Board of Trustees or the Shareholders,
the number of Trustees constituting the entire Board of Trustees shall
be nine. Except for the initial Trustees during their initial term, the
Trustees shall be elected at the annual meeting of Shareholders and
each Trustee shall be elected to serve until his successor shall be
elected and shall qualify. A Trustee shall be an individual at least 21
years of age who is not under legal disability. A Trustee shall not be
required to devote his full business time and effort to the Trust. A
Trustee shall qualify as such when he has either signed this
Declaration of Trust or agreed in writing to be bound by it. No bond
shall be required to secure the performance of a Trustee unless the
Trustees so provide or as required by law."
3. Article IV, Section 8 of the Declaration of Trust is
amended as follows (new language appearing in italics):
"SECTION 8. ACTIONS BY TRUSTEES. The trustees shall hold at
least four meetings per year. The Trustees may act with or without a
meeting. The presence of at least 75% of the Board of Trustees then in
office, the majority of which shall be Independent Trustees, shall be
necessary to constitute a quorum for the transaction of business,
except to adjourn a meeting. Every act or decision done or made by the
affirmative vote of at least a majority of the Board of Trustees at a
meeting duly held at which a quorum is present shall be regarded as an
act of the Board of Trustees unless a greater number is required by law
or by the By-Laws or by this Declaration of Trust. If at any time more
than one vacancy exists on the Board of Trustees, a quorum of the Board
of Trustees shall not exist unless and until such vacancies are filled
so that no more than one vacancy exists on the Board of Trustees. Any
agreement, deed, mortgage, lease or other instrument of writing
executed by any one or more of the Trustees or by any one or more
authorized persons shall be valid and binding upon the Trustees and
upon the Trust when authorized by action of the Trustees."
30
4. Article I, Section 1 of the Declaration of Trust is amended
as follows (new language appearing in italics):
"SECTION 1. NAME. The name of Trust created by this
Declaration of Trust shall be "Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust" and
so far as may be practicable, the Trustees of the Trust ("Trustees" or
the "Board of Trustees") shall conduct the Trust's activities, execute
all documents and ▇▇▇ or be sued under the name, which name (and the
word "Trust" whenever used in this Declaration of Trust, except where
the context otherwise requires) shall refer to the Trustees in their
capacity as Trustees and not individually or personally, and shall not
refer to the officers or Shareholders of the Trust or the agents or
employees of the Trust or of such Trustees. Should the Trustees
determine that the use of such name is not practicable, legal or
convenient, they may use such other designation or they may adopt such
other name of the Trust as they deem proper and the Trust may hold
property and conduct its activities under such designation or name,
subject, however, to the limitations contained in the next succeeding
paragraphs."
5. Article VII, Section 1 of the Declaration of Trust is
amended as follows (new language appearing in italics):
"SECTION 1. SHARES. The units into which the beneficial
interest in the Trust will be divided shall be designated as Shares,
which Shares shall be of one or more classes and shall have a par value
of $.10 per Share. The certificates evidencing the Shares shall be in
such forms as the Board of Trustees may prescribe, signed by, or in the
name of the Trust by, the Chairman of the Board or the President, and
by the Secretary or the Treasurer. Where a certificate is countersigned
by a transfer agent and/or registrar other than the Trust or its
employees, the signatures of such officers may be facsimiles. There
shall be no limit on the number of Shares to be issued. The Shares may
be issued for such consideration as the Trustees shall determine,
including upon the conversion of convertible debt, or by way of share
dividend or share split in the discretion of the Trustees. In addition
to the issuance of Shares by way of share dividend or share split, the
Trustees may combine outstanding Shares by way of reverse share split
and provide for the payment of cash in lieu of any fractional interest
in a combined Share; and the mechanics authorized by the Trustees to
implement any such combination shall be binding upon all Shareholders,
holders of convertible debt, optionees and others with any interest in
Shares. Shares reacquired by the Trust may be cancelled by action of
the Trustees. All Shares shall be fully paid and non-assessable by or
on behalf of the Trust upon receipt of full consideration for which
they have been issued or
31
without additional consideration if issued by way of share dividend,
share split, or upon the conversion of convertible debt. The Shares
shall not entitle the holder to preference, preemptive, appraisal,
conversion, exchange or cumulative voting rights of any kind."
Except as so amended, the Declaration of Trust shall remain
unmodified and in full force and effect.
32
IN WITNESS WHEREOF, the undersigned, being not less than a
majority of the Trustees of RPS REALTY TRUST, have each executed this Amendment
to the Amended and Restated Declaration of Trust as of __________________, 1996.
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