BUYER/COLORADO SHARING AGREEMENT
between
SPECIAL SITUATIONS XX XXXX, INC., "Buyer"
and
THE XXXXXX XXXXXXX REAL ESTATE
SPECIAL SITUATIONS FUND II, L.P., "Colorado"
------------------------------------
regarding a certain Preferred Units and Stock Purchase
Agreement
by and among SPECIAL SITUATIONS XX XXXX, INC.,
the ADVANCING PARTY (as defined therein),
RAMCO-XXXXXXXXXX PROPERTIES TRUST and
RAMCO-XXXXXXXXXX PROPERTIES, L.P.
BUYER/COLORADO SHARING AGREEMENT
BUYER/COLORADO SHARING AGREEMENT, dated as of September 30, by and
between SPECIAL SITUATIONS XX XXXX, INC. ("Buyer"), and THE XXXXXX XXXXXXX REAL
ESTATE SPECIAL SITUATIONS FUND II, L.P. ("Colorado").
RECITALS:
WHEREAS, Buyer is a party to a Preferred Units and Stock Purchase
Agreement dated as of even date herewith (the "Stock Purchase Agreement"), with
the Advancing Party, as defined therein, Ramco-Xxxxxxxxxx Properties Trust (the
"Company") and Ramco-Xxxxxxxxxx Properties, L.P. (the "Operating Partnership"),
relating, inter alia, to the purchase of up to an aggregate of 1,200,000 shares
of a newly authorized series of convertible preferred stock of the Company (the
"Purchased Shares"), and, to the extent that the Company is unable to issue
such Company Preferred Stock, up to an aggregate of 1,200,000 preferred units
of the Operating Partnership (the "Purchased Units"), in each case at a price
of $25.00 per share of Purchased Share or per Purchased Unit, as the case may
be; and
WHEREAS, Colorado desires to purchase Purchased Units subject to the
terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and covenants
contained herein, Colorado and Buyer hereby each agree as follows:
1. Definitions. Unless separately defined herein, all capitalized
terms used herein which are not otherwise defined herein shall have the
meanings ascribed to such terms in the Stock Purchase Agreement.
2. Purchase of Participation. At any Units Purchase, Buyer agrees to
sell and Colorado agrees to purchase, on the terms and conditions in this
Agreement, an economic contract right as established herein which is to reflect
the distributable cash, refinancing proceeds and sales proceeds, if any,
measured and determined by an undivided participation interest (the "Investment
Contract Interest") in 14.417% (the "Colorado Percentage") of the Purchased
Units. The consideration payable hereunder by Colorado shall be equal to one
hundred percent (100%) of the purchase price paid by Buyer for the Purchased
Units ($4,325,100).
3. Termination Date. Colorado's Investment Contract Interest in the
Purchased Units shall be irrevocable and unconditional, subject to the terms
and conditions of the Stock Purchase Agreement and the Buyer Reorganization
Agreement.
4. Dividends. The Buyer shall pay to Colorado the Colorado
Percentage of all dividends, distributions and other payments hereafter
received by Buyer in respect of the Purchased Units from the Operating
Partnership after deducting therefrom expenses and any such reasonable reserves
as Buyer may determine promptly after receipt thereof.
5. Colorado's Purchase Obligations. Subject to the terms and
conditions of that certain letter dated March 31, 1997 between Colorado and
Xxxxxx Xxxxxxx Asset Management Inc. (the "IMA Letter") and that Amended and
Restated Agreement of Limited Partnership of Colorado dated as of March 31,
1997 (the "Colorado Partnership Agreement"), Buyer will give Colorado notice of
Colorado's Investment Contract Interest of the purchase price for any Purchased
Units which the Company requires the Buyer to purchase at a Closing, pursuant
Section 2.4 of the Stock Purchase Agreement (followed by telex or facsimile
confirmation thereof). Colorado will remit to Buyer, on the date specified
therefor in such notice, the dollar amount of Colorado's Investment Contract
Interest in any such purchase as specified by Buyer in the foregoing notice.
6. Sharing Provisions. Subject to the IMA Letter and the Partnership
Agreement to the extent inconsistent herewith, all collections received in
respect of the Purchased Units, or any portion thereof, by the Buyer or
Colorado shall be divided between Buyer and Colorado on the basis of Colorado
Percentage. All amounts received by Colorado in respect of the Purchased Units
other than pursuant to this Agreement shall be remitted to Buyer less Colorado
Percentage therein. If any party hereto shall, at any time, receive a dividend,
distribution or other payment on account of all or part of its pro rata share
in the Purchased Units, in a greater proportion than the payments made on
account of the interest of the other party hereto, such party receiving such
greater proportionate interest shall promptly make payment in cash, to the
other party hereto, such amount in excess of its pro rata share. If any such
payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
7. No Assignment or Subparticipation. Subject to the IMA Letter and
the Partnership Agreement to the extent inconsistent herewith, the Investment
Contract Interest in the Purchased Units, or any portion thereof, may not be
further participated or transferred in whole or in part without the prior
written consent of Buyer, which consent shall not be unreasonably withheld, and
Colorado represents that it is purchasing the Investment Contract Interest for
its own account and not with a view to further distribution thereof. Colorado
acknowledges that Buyer may sell participations or other interests in the
Purchased Units to others.
8. Colorado's Acknowledgments. Colorado hereby acknowledges receipt
of copies of the Stock Purchase Agreement and related documents and
acknowledges its understanding and acceptance of the terms thereof. Unless
prohibited from doing so under the Stock Purchase Agreement, or by law, Buyer
shall provide Colorado, promptly after receipt thereof, copies of all
information regarding the operations, business, affairs and financial condition
of and the Operating Partnership including, without limitation, each report or
statement of the Operating Partnership, and all other notices delivered
pursuant to the Stock Purchase Agreement.
9. Control by Buyer.
(a) Subject to the IMA Letter and the Partnership Agreement to the
extent inconsistent herewith, Buyer shall have the sole right to collect all
dividends, distributions and/or other amounts due in respect of the Purchased
Units and the Stock Purchase Agreement pursuant to the terms and conditions
thereof, together with all proceeds arising from any remedial action taken with
respect to the Purchased Units and the Stock Purchase Agreement, as well as
exercise all rights of Colorado as a holder of Purchased Units, including,
without limitation, the giving of any notices as to the redemption thereof.
(b) Subject to the IMA Letter and the Partnership Agreement to the
extent inconsistent herewith, if, at any time, the Operating Partnership
requests the consent of Buyer, Buyer may consent on behalf of Buyer and
Colorado whether or not Buyer has received the prior approval of Colorado.
10. Exchange Upon Buyer Reorganization. Upon the occurrence of the
Buyer Reorganization, the Investment Contract Interest shall, without any
further action on the part of Colorado or Buyer, be deemed to be contributed to
the Maryland Trust by Colorado and in return Colorado will receive from the
Maryland Trust a number of shares of Company Preferred Stock equal to the
number of Purchased Units of the Operating Partnership in which Colorado has a
full participation pursuant to this Agreement.
11. Notices. Subject to the IMA Letter and the Partnership Agreement
to the extent inconsistent herewith, and unless otherwise directed by either
party hereto to whom any notice is to be given, all notices to Buyer and to
Colorado shall be transmitted to the addresses set forth on the signature page
hereof. Buyer will provide Colorado, promptly after the execution thereof, with
any material amendment or modification of the Stock Purchase Agreement or any
(a) notice from the Operating Partnership of the occurrence of any event which
constitutes a breach under the Stock Purchase Agreement, or (b) notice from the
Operating Partnership of any action, suit or proceeding known to the Operating
Partnership at law or in equity or by or before any governmental
instrumentality or other agency which, if adversely determined, would
materially impair the right of the Operating Partnership to carry out its
obligations under the Stock Purchase Agreement or any of the instruments
delivered thereunder or would materially affect its assets or financial
condition. Failure of Buyer to provide any such notice referred to in the
foregoing sentence shall not result in any liability to Buyer unless such
failure occurs in the time between a request for consent hereunder by Buyer and
the time such a request is granted or denied by Colorado.
12. Waiver. Subject to the IMA Letter and the Partnership Agreement
to the extent inconsistent herewith, Colorado will not have, and will not
assert or seek to exercise, any right of legal redress against or the Operating
Partnership or any other person having any obligation with respect to the Stock
Purchase Agreement, any other related documents, or Colorado's Investment
Contract Interest. Subject to the limitations in the Agreement, Colorado agrees
that Buyer may take legal action to enforce or protect Colorado's and/or
Buyer's interest with respect to the Stock Purchase Agreement, the transactions
contemplated thereby, or pursuant to any agreement contemplated therein, and
any other related documents. Nothing in this Section 13 shall waive any right
Colorado may have under this Agreement.
13. Representations. Colorado hereby represents and warrants to Buyer
that (i) Colorado is a limited partnership organized under the laws of
Delaware; (ii) Colorado will perform its obligations hereunder for its own
account in the ordinary course of business; (iii) the making and performance by
Colorado of its obligations under this Agreement have been duly authorized by
all necessary corporate action on the part of Colorado; and (iv) the obligation
of Colorado under this Agreement is the legal, valid and binding obligation of
Colorado, enforceable against Colorado in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether enforceability is sought in a
proceeding in equity or at law).
14. Colorado Tax Representations. Colorado represents that it is
entitled to receive any payments to be made to it by Buyer hereunder without
the withholding of any tax and will furnish to Buyer such certifications,
statements and other documents as are necessary or appropriate to evidence
Colorado's exemption from the withholding of any tax imposed by any
jurisdiction or to enable Buyer to comply with any applicable laws or
regulations relating thereto.
15. Confidentiality; Limited Disclosure. Except as may be required by
law or by any competent regulatory or administrative body or any representative
thereof, Colorado will not without the prior written consent of Buyer, other
than to Colorado's legal counsel, accountants and subparticipant, each such
subparticipant as approved by Buyer, disclose (i) any terms of this Agreement
to the Operating Partnership or any other person or entity or (ii) the
existence of this Agreement to any person or entity other than the Operating
Partnership.
16. Entire Agreement. Subject to the IMA Letter and the Partnership
Agreement, this Agreement sets forth the entire agreement between Colorado and
Buyer and may not be supplemented or altered except in a written agreement
signed by Buyer and Colorado. In the absence of manifest error, all
determinations made by Buyer in good faith hereunder or relating to the Stock
Purchase Agreement shall be conclusive and binding on Colorado. If any
provision hereof would be invalid under applicable law, such provision shall be
deemed to be modified to the extent necessary to render it valid while most
nearly preserving its original intent; no provision hereof shall be affected by
another provision's being held invalid.
17. Governing Law; Submission to Jurisdiction. This Agreement shall
be governed by, and construed in accordance with, the laws of New York. Any
legal action or proceeding arising out of or relating to this Agreement may be
brought in the courts of New York, the courts of the United States located in
the City of New York and Colorado hereby irrevocably submits to the
jurisdiction of each of such courts in any action or proceeding. Colorado
hereby irrevocably consents to service of process in any said action or
proceeding in any of such courts by the mailing or copies thereof, postage
prepaid, to Colorado at Colorado's address set forth under Colorado's name on
the signature page hereto, such service to become effective ten (10) days after
such mailing. Colorado hereby waives, in relation to any such action or
proceeding, any sovereign immunity or other immunity to suit or to execution or
attachment (whether before or after judgment) to which Colorado or any of
Colorado's property may be or become entitled.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which is an original document, but all of which, taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Agreement as of the date and year set opposite the signatures herein.
SPECIAL SITUATIONS XX XXXX, INC.
By: /s/ Xxx Xxxxxx
-------------------------------------------
Name: Xxx Xxxxxx
Title: Vice President
Address: c/x Xxxxxx Xxxxxxx Asset Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
THE XXXXXX XXXXXXX REAL ESTATE
SPECIAL SITUATIONS FUND II, L.P.
By: /s/ Xxx Xxxxxx
-------------------------------------------
Name: Xxx Xxxxxx
Title: Vice President
Address: c/x Xxxxxx Xxxxxxx Asset Management Inc.
1221 Avenue of the Americas
Date: September 30, 0000 Xxx Xxxx, Xxx Xxxx 00000
