EXHIBIT 10
Exhibit 10
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of June
27, 1997 among MID- ATLANTIC REALTY TRUST, a Maryland real estate investment
trust ("MART"), and the persons and entities named on Schedule 1 hereto
(individually, a "Contributor" and collectively the "Contributors").
RECITALS
a. Pursuant to an Agreement for Contribution of Interests dated as of
April 1, 1997 ("Contribution Agreement"), among the Contributors, MART and MART
Limited Partnership, a Maryland limited partnership (the "Partnership"), the
Contributors have received units of limited partnership interest in the
Partnership (the "Initial Units").
b. Pursuant to the Agreement of Limited Partnership of the Partnership
(the "Partnership Agreement") and the Contribution Agreement, by reason of
certain Puts (as defined and described in the Partnership Agreement and
Contribution Agreement), the Partnership may in the future have the obligation
to repurchase Initial Units. In such event, MART will have the option to assume
all or any part of the obligation of the Partnership to pay all or any part of
the repurchase price and, in such event, may do so with its Common Shares of
Beneficial Interest, par value $.01 per share (the "Common Shares").
c. MART has agreed to provide to the Contributors and the Permitted
Transferees (as defined in the Contribution Agreement) the registration rights
herein set forth with respect to any Common Shares issued by MART to the
Contributors upon a Put of their Initial Units.
NOW, THEREFORE, in consideration of the foregoing, the parties agree as
follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following shall
have the following meanings:
"Closing" shall have the meaning set forth in the Contribution
Agreement.
"Commission" shall mean the United States Securities and
Exchange Commission.
"Demand Period" shall mean the period of time beginning with
the end of the Shelf Period and ending on the earliest of (i) the completion of
demand registrations for registration of the number of Registrable Securities
held by Qualified Holders at the end of the Shelf Period, (ii) at such time as
the number of outstanding Registrable Securities is less than 300,000, or (iii)
the 20th anniversary of the Closing.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be in effect at the time.
"Form S-3" shall mean such form under the Securities Act as is
in effect on the date hereof or any successor registration form under the
Securities Act subsequently adopted by the Commission which permits inclusion or
incorporation of substantial information by reference to other documents filed
by a reporting entity with the Commission.
"Outstanding Registrable Securities" shall mean the number of
Registrable Securities held by a Qualified Holder that are then issued and
outstanding as the result of a Put of Initial Units and issued as a dividend
thereon or other distribution with respect thereto.
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"Participating Holder" shall mean any Qualified Holder that
elects to include his/her/its Registrable Securities in a registration pursuant
to the terms of this Agreement.
"Permitted Transferee" shall have the meaning set forth in the
Contribution Agreement.
"Person" shall mean and include an individual, an entity, or an
unincorporated organization.
"Qualified Holder" shall mean a Contributor or Permitted
Transferee that holds Initial Units or Outstanding Registrable Securities.
"Register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement.
"Registrable Securities" shall mean all the Common Shares held
by a Qualified Holder that are: (i) issued to him/her/it upon a Put of Initial
Units by a Qualified Holder, or issuable to him/her/it upon the exercise by MART
of its election to pay the Redemption Price (as defined in the Partnership
Agreement) in Shares, and (ii) issued as a stock split, stock dividend or other
distribution or in connection with any recapitalization or reclassification with
respect to any Common Shares referred to in clause (i); excluding in all cases,
however, (x) any Registrable Securities sold pursuant to registration under the
Securities Act, and (y) any Registrable Securities sold or eligible for sale
without registration pursuant to Rule 144 (or similar or successor rule)
promulgated under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder,
all as the same shall be in effect at the time.
SECTION 2. SHELF REGISTRATION. The Company shall prepare and file with
the Commission a shelf registration statement under Rule 415 of the Securities
Act to register the Registrable Securities. The Company shall use its best
efforts to cause such registration statement to be declared effective as soon as
possible after the first anniversary of the Closing, and to keep such
registration statement continuously effective for a period of four years plus
any additional extension periods pursuant to the next sentence. The Shelf Period
shall be extended for an additional number of days equal to the number of
business days during the pendency of all Suspension Periods and Blackout Periods
under Section 5 hereof.
SECTION 3. DEMAND REGISTRATION.
(a) Request for Registration. At any time during the Demand
Period, any Qualified Holder holding at least 300,000 Registrable Securities or
such Qualified Holder holding the largest number of Registrable Securities may
request in writing (a "Registration Request") that MART file a registration
statement , for his/her/its benefit and/or for the benefit of any other
Qualified Holders, with the Commission under the Securities Act on Form S-3
(each, a "Demand Registration") covering the registration of at least 100,000
Registrable Securities. Within 10 days after the receipt of a Registration
Request, MART shall give written notice to all other Qualified Holders (the
"Registration Notice") of such request and permit such other Qualified Holders
to participate in such registration by written notice (the "Holder Notice")
received by MART within 10 days after the date the Registration Notice was
given.
Nothing in this Agreement is intended to confer upon any
person the right to demand Shares upon the Put of his/her/its Initial Units, or
to require MART to exercise its right to issue Shares in payment of the
Redemption Price.
(b) Obligations of MART. Upon a Registration Request for a
Demand Registration pursuant to Subsection (a) above, MART shall use its best
efforts (subject to Section 5 hereof) to cause the Demand Registration to become
effective within 45 days after the date the Registration Request was made
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("Outside Effective Date") and to remain in effect for at least 90 days after
such Demand Registration is declared effective (excluding business days during
the pendency of any Suspension Period or Blackout Period pursuant to Section 5
of this Agreement). Except as provided in Subsection (c) below, MART shall be
obligated to effect, or to take action to effect, only two Demand Registrations
in any 12 month period pursuant to this Section 3 ("Permitted Demand
Registrations").
(c) Third Request for Demand Registration. If Participating
Holders have made two consecutive requests for a Demand Registration and no
registration statement shall have been declared effective as a result of two or
more Suspension Periods or Blackout Periods, then the Participating Holders in
such registrations shall have the right to make a special request for a Demand
Registration (the "Third Demand Registration") without regard to the number of
prior Permitted Demand Registrations during such 12 month period.
(d) Demand In Connection with a Put. If a Participating Holder
exercises his or her demand rights in connection with a Put of Initial Units,
then the Put will not be settled for Shares prior to the effective date of the
registration statement. If the registration statement is not declared effective
by the Outside Effective Date, then any Participating Holder may withdraw his or
her Registrable Securities from such registration and such registration will not
count toward the number of Permitted Demand Registrations in such 12 month
period. If a Third Demand Registration request is made immediately following two
consecutive Registration Requests that have not been declared effective or have
not permitted sales due to consecutive Suspension Periods and/or Blackout
Periods, and the Third Demand Registration is not declared effective by the
180th day after the first Registration Request was made, even if such delay is
due to a Market Stand-Off Period, then MART shall be required to honor the Put
by payment of cash to the Participating Holders promptly following such 180th
day.
(e) Puts by Small Holders. If a Contributor or Permitted
Transferee Puts less than 100,000 Initial Units and there is not then pending,
requested or proposed any registration of Registrable Securities for any
Qualified Holder, and if MART elects to assume the obligation of the Partnership
to pay the Redemption Price, then, notwithstanding Section 3(a) hereof, MART
shall either (i) pay the Redemption Price in cash or (ii) register the Shares
that may be issued to such holder in accordance with all other terms of this
Agreement and this Section 3. In such event, the registration of such Shares
shall not be deemed as a Demand Registration for purposes of calculating the
Permitted Demand Registrations under Section 3(b) hereof.
(f) Underwritten Demand Registration. If the Participating
Holders initiating the Demand Registration request ("Initiating Holders") intend
to distribute their Registrable Securities covered by their request by means of
an underwritten offering, they shall so advise MART as a part of their request
for registration pursuant to this Section 3, and MART shall include such
information in the Registration Notice. In such event, the right of any
Participating Holder to include his or her Registrable Securities in such Demand
Registration shall be conditioned upon such Participating Holder's entering into
an underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting by MART, provided that the charges
payable by the Participating Holders to such underwriter shall be commercially
reasonable. Notwithstanding any other provision of this Section 3, if the
underwriter(s) advise(s) MART in writing that successful marketing of the
securities to be distributed in such offering requires a limitation of the
number of securities to be underwritten, then MART shall so advise all
Participating Holders, and the number of Registrable Securities that may be
included in the underwriting shall be reduced as required by the underwriter(s),
and the number of Registrable Securities to be included in such registration
shall be allocated among the Participating Holders on a pro rata basis according
to the number of Registrable Securities held by each Participating Holder
requesting Demand Registration (including the Initiating Holders).
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SECTION 4. PIGGYBACK REGISTRATION.
(a) Right to Piggyback Registration. If, at any time that at
least 10% of the Registrable Securities are held by Qualified Holders, MART
proposes to file a registration statement under the Securities Act with respect
to an offering (a "Primary Offering") of Common Shares for its own account
(other than a registration statement (i) on Form S-8 or any successor form or in
connection with any employee or director benefit or compensation plan, (ii) on
Form S-4 or any successor form or in connection with an exchange offer, (iii) in
connection with a rights offering exclusively to existing holders of Common
Shares of other securities of MART, (iv) in connection with an offering solely
to employees of MART or its affiliates, (v) relating to a transaction described
in Rule 145 of the Securities Act, or (vi) a shelf registration described in
Rule 415 of the Securities Act, then MART will:
(i) give written notice of such proposed Primary Offering to
all Qualified Holders as soon as practicable but in no event less than 20 days
before the anticipated filing date of the registration statement (the "Piggyback
Notice"). The Piggyback Notice shall offer such Qualified Holders the
opportunity to request that MART register such amount of their Registrable
Securities as each such Qualified Holder may request, and shall state the date
that the offering is anticipated to become effective (the "Anticipated Offering
Date"); and
(ii) include in such proposed Primary Offering all
Registrable Securities specified in written requests by the Qualified Holders
that are received by MART within 10 days after the date the Piggyback Notice was
given.
If it is expected that the Anticipated Offering Date will be delayed by more
than 30 days, then MART shall use its best efforts to again give notice to the
Qualified Holders of the new Anticipated Offering Date and permit them the
opportunity to include their Registrable Securities in, or remove their
Registrable Securities from, the registration statement.
(b) Excluded from Piggyback Registration Rights.
Notwithstanding the piggyback registration rights of Qualified Holders described
in this Section 4, such rights do not apply in the event that:
(i) it is reasonably anticipated at the time MART reaches
agreement with the managing underwriter that the Primary Offering will commence
within 20 days from and after such date;
(ii) the underwriters, acting reasonably, determine that the
Primary Offering would be unreasonably delayed by the allowance of piggyback
registration rights hereunder; and
(iii) the Primary Offering, in fact, does not include any
Shares held by any person other than MART.
(c) Underwritten Public Offering. If the Primary Offering is
an underwritten public offering on behalf of MART, MART's obligation to include
in such registration the Registrable Securities of any Participating Holder
shall be conditioned upon the Participating Holder entering into an underwriting
agreement with the underwriters, agreeing to be bound by all terms and
conditions of the offering, and providing such complete and accurate information
as the underwriter may request, including information for inclusion in the
registration statement. If the managing underwriter advises MART in writing that
the total number of Common Shares requested to be included in such offering by
the Participating Holders and by MART exceeds the number of Common Shares which,
in the opinion and at the reasonable discretion of such managing underwriter,
can be included in the offering without adversely affecting the offering, the
price range of the Common Shares offered or the probability of success of such
offering, MART will include in such offering (i) first, all Common Shares that
MART proposes to offer, and (ii) second, up to the full number of Registrable
Securities requested by Participating Holders to be included in such
registration that the managing underwriter reasonably believes will not so
affect the offering. In such event,
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the number of Common Shares to be included in such offering by all holders,
including the Participating Holders, shall be allocated pro rata among all such
holders on the basis of the total number of Common Shares (including Registrable
Securities) subject to registration rights that are held by each such holder
(regardless of the number of Common Shares requested to be included in such
registration). In the case of a request for registration pursuant to this
Section 4 in connection with a Put, the Put will not be settled for Shares
before the effective date of the registration statement which includes such
Registrable Securities and shall be considered as never having been exercised to
the extent that the Registrable Securities are not so included.
SECTION 5. SUSPENSION PERIOD; BLACKOUT PERIOD.
(a) Commission Stop Order. MART shall promptly give notice to
all Participating Holders of the issuance by the Commission of any stop order
suspending the effectiveness of any registration statement filed pursuant to
this Agreement or the initiation of any proceedings for that purpose. MART shall
use its best efforts to obtain the withdrawal of any order suspending the
effectiveness of any such registration statement at the earliest possible time.
(b) Suspension Events. Notwithstanding anything to the
contrary set forth in this Agreement, MART's obligation under this Agreement to
register any Registrable Securities shall be suspended upon notice by MART to
all Participating Holders of the occurrence of any one or more of the following
events ("Suspension Events"):
(i) a determination by MART, evidenced by a
certificate signed by the President or Chief
Executive Officer of MART, stating that in the good
faith judgment of the Board of Trustees of MART it
would be seriously detrimental to MART and its
stockholders for such registration statement to be
filed and it is therefore essential to defer the
filing of such registration statement;
(ii) a determination by MART to effect an
underwritten Primary Offering, if MART is advised by
the managing underwriter that the offer or sale of
Registrable Securities hereunder would have a
material adverse effect on the proposed offering;
(iii) pending negotiations relating to, or
consummation of, a transaction or the occurrence of
an event that would require additional disclosure of
material information by MART in the registration
statement or which renders MART unable to comply with
applicable disclosure requirements in connection with
the registration or sale of the Registrable
Securities; or
(iv) the issuance of a stop order.
(c) Duration of Suspension Period. Any suspension pursuant to
Subsection (b) shall commence on the date notice ("Suspension Notice") is given
by MART to all Participating Holders of such Suspension Event, and shall
continue in effect until such time that (i) notice is given by MART that such
Suspension Event or its effect no longer exists, or (ii) the passage of 120 days
after the Suspension Notice was given (the "Suspension Period"), whichever is
earlier.
(d) Blackout Period. Following the effectiveness of any
registration statement hereunder, each Participating Holder agrees that no
offers or sales of any Registrable Securities owned or held by such Person will
be effected after MART shall have given notice ("Blackout Notice") of any
Suspension Event which states that no offers or sales shall be made, until such
time that (i) notice is given by MART that offers and sales may recommence, or
(ii) the passage of 120 days after the Blackout Notice has been given (the
"Blackout Period"), whichever is earlier.
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(e) Limit on No Sale Period. In no event will the combined
duration of all Suspension Periods and Blackout Periods during any calendar year
exceed 150 days, and the combined duration of all Suspension Periods, Blackout
Periods and Market Stand-Off Periods during any calendar year exceed 180 days.
If in connection with any Put the combined duration of all Suspension Periods,
Blackout Periods and Market Stand-Off Periods during any calendar year exceeds
180 days, then MART shall be required to honor the Put by payment of cash to the
Putting Participating Holders promptly following such 180th day.
SECTION 6. EXPENSES OF REGISTRATION. All expenses incurred in
connection with a registration pursuant to this Agreement, including, without
limitation, all federal and "blue sky" registration and qualification fees,
printers' and accounting fees, fees and disbursements of counsel for MART shall
be borne by MART. Each Participating Holder shall bear a proportionate share of
all discounts, commissions or other amounts payable to underwriters or brokers
in connection with such offering and of the expenses of counsel for
Participating Holders. MART shall not be required to pay for expenses of any
registration request pursuant to Section 3 if the registration request is
subsequently withdrawn at the request of the Participating Holders of a majority
of all of the Registrable Securities to be registered unless such withdrawal is
pursuant to a right of withdrawal provided for in this Agreement.
SECTION 7. REGISTRATION PROCEDURES.
(a) Whenever required to effect a registration of any
Registrable Securities under this Agreement, MART shall, as expeditiously as
reasonably possible:
(i) Prepare and file with the Commission such
amendments and supplements to such registration statement and
the prospectus used in connection with such registration
statement as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(ii) Furnish to the Participating Holders such number
of copies of a prospectus, including a preliminary prospectus,
in conformity with the requirement of the Securities Act, and
such other documents as they may reasonably request in order
to facilitate the disposition of the Registrable Securities
owned by them that are included in such registration.
(iii) In the event of any underwritten public
offering, enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the
managing underwriter(s) of such offering. Each Participating
Holder in such underwriting shall also enter into and perform
its obligations under such an agreement.
(iv) Notify each Participating Holder of Registrable
Securities covered by such registration statement at any time
when a prospectus relating thereto is required to be delivered
under the Securities Act of the happening of any event as a
result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then
existing.
(v) Furnish, at the request of any Participating
Holder requesting registration of Registrable Securities, on
the date that such Registrable Securities are delivered to the
underwriters for sale, if such securities are being sold
through underwriters, or, if such securities are not being
sold through underwriters, on the date that the registration
statement with respect to such securities becomes effective,
(x) an opinion, dated as of such date, of the counsel
representing MART for the purposes of such registration, in
form and substance as is customarily given to underwriters in
an underwritten public offering and reasonably
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satisfactory to a majority in interest of the Participating
Holders requesting registration of Registrable Securities and
(y) a "comfort" letter dated as of such date, from the
independent certified public accountants of MART, in form and
substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest
of the Participating Holders requesting registration,
addressed to the underwriters, if any, and to the
Participating Holders requesting registration of the
Registrable Securities.
SECTION 8. FURNISH INFORMATION. It shall be a condition precedent to
the obligations of MART to take any action pursuant to Sections 2, 3 and 4 that
the Participating Holders shall furnish such complete and accurate information
regarding themselves, the Registrable Securities held by them, the intended
method of disposition of such securities and such other information as MART (or
any underwriter) shall reasonably require to effect the registration of their
Registrable Securities.
SECTION 9. SALES PURSUANT TO RULE 144. MART shall have no obligations
to register any Common Shares hereunder to the extent that, in the opinion of
counsel to MART, such Common Shares may be sold in a three-month period without
registration under the Securities Act pursuant to Rule 144 under the Securities
Act.
SECTION 10. LIMITATION ON CERTAIN REGISTRATION RIGHTS. MART will not
grant to any person other than a Qualified Holder, the right to include or
piggyback their Common Shares or other securities in any demand registration or
shelf registration filed pursuant to this Agreement. Anything in this Agreement
to the contrary notwithstanding, Qualified Holders shall have no right to
register their Registrable Securities in any registration statement filed by
MART pursuant to demand registration rights granted to any Person other than the
Qualified Holders.
SECTION 11. INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Agreement:
(a) Indemnification by MART. To the extent permitted by law,
MART shall indemnify and hold harmless each Participating Holder, the partners,
officers and directors of each Participating Holder, any underwriter (as defined
in the Securities Act) for such Participating Holder and each Person, if any,
who controls such Participating Holder or underwriter within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions or violations
(collectively, a "Violation"):
(i) any untrue statement or alleged untrue statement
of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto,
(ii) the omission or alleged omission to state
therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by MART of
the Securities Act, the Exchange Act, any federal or state
securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any federal or state
securities law in connection with the offering covered by such
registration statement,
and MART shall reimburse each such Participating Holder, partner, officer, or
director, underwriter or controlling Person for any legal or other expenses
reasonably incurred by them, as incurred, in connection with investigating or
defending such loss, claim, damage, liability or action; provided however, that
the indemnity agreement contained in this Section shall not apply to amounts
paid in settlement of any such
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loss, claim, damage, liability or action if such settlement is effected without
the consent of MART (which consent shall not be unreasonably withheld), nor
shall MART be liable in any case for any such loss, claim, damage, liability or
action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by such Participating
Holder, partner, officer, director, underwriter or controlling Person of such
Participating Holder.
(b) Indemnification by Participating Holders of Registrable
Securities. To the extent permitted by law, each Participating Holder shall
indemnify and hold harmless MART, each of its directors, each of its officers
who have signed the registration statement, each Person, if any, who controls
MART within the meaning of the Securities Act, any underwriter and any other
Participating Holder selling securities under such registration statement or any
of such other Participating Holder's partners, directors or officers or any
Person who controls such Participating Holder within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages or
liabilities (joint or several) to which MART or any such director, officer,
controlling Person, underwriter or other such Participating Holder, partner or
director, officer or controlling Person of such other Participating Holder may
become subject under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Participating
Holder expressly for use in connection with such registration; and each such
Participating Holder shall reimburse any legal or other expenses reasonably
incurred by MART or any such director, officer, controlling Person, underwriter
or other Participating Holder, partner, officer, director or controlling Person
of such other Participating Holder in connection with investigating or defending
any such loss, claim, damage, liability or action; provided however, that the
indemnity agreement contained in this Section shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Participating Holder, which
consent shall not be unreasonably withheld; and provided further, that the total
amounts payable in indemnity by a Participating Holder under this Section in
respect of any Violation shall not exceed the net proceeds received by such
Participating Holder in the registered offering out of which such Violation
arises.
(c) Conduct of Indemnification Proceedings. Promptly after
receipt by an indemnified party under this Section of notice of the commencement
of any action (including any governmental action), such indemnified party shall,
if a claim in respect thereof is to be made against any indemnifying party under
this Section deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided however,
that an indemnified party shall have the right to retain its own counsel, with
the fees and expenses to be paid by the indemnifying party, if representation of
such indemnified party by the counsel retained by indemnifying party would be
inappropriate due to actual or potential differing interest between such
indemnified party and any other party represented by such counsel in the
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party of
any liability to the indemnified party under this Section, but the omission so
to deliver written notice to the indemnifying party shall not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section.
(d) Applicable to Preliminary Prospectus. The foregoing
indemnity agreements of MART and Participating Holders are subject to the
condition that, insofar as they related to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
Commission at the time the registration statement in question becomes effective
or the amended prospectus filed with the Commission pursuant to Rule 424(b)
under the Securities Act (the "Final Prospectus"), such indemnity agreement
shall not inure to the benefit of any Person if a copy of the Final Prospectus
was furnished to the indemnified party and was not furnished to the Person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.
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(e) Contribution. If the indemnification provided for in this
Section 11 is unavailable to a party that would have been an indemnified party
under this Section 11 in respect of any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) referred to herein, then each
party that would have been an indemnifying party hereunder shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative fault of such indemnifying party on the
one hand and such indemnified party on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof). The relative fault
shall be determined by reference to, among other things, whether the Violation
relates to information supplied by such indemnifying party or such indemnified
party and the parties, relative intent, knowledge, access to information and
opportunity to correct or prevent such Violation. The parties agree that it
would not be just and equitable if contribution pursuant to this Section 11(e)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
preceding sentence. The amount paid or payable by a contributing party as a
result of the losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to above in this Section 11(e) shall include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The liability of any Participating
Holder in respect of any contribution obligation of such Holder (after deduction
of all underwriters' discounts and commissions paid by such Participating Holder
in connection with the registration in question) arising under this Section
11(e) shall not in any event exceed an amount equal to the net proceeds to such
Participating Holder from the disposition of the Registrable Securities disposed
of by such Participating Holder pursuant to such registration.
(f) Survival. The obligations of MART and Participating
Holders under this Section shall survive the completion of any offering of
Registrable Securities in a registration statement, and otherwise.
SECTION 12. MARKET STAND-OFF AGREEMENT. Each Participating Holder
agrees that he, she or it shall not, to the extent required by MART or an
underwriter of securities of MART, sell or otherwise transfer or dispose of any
Registrable Securities for up to that period of time following the effective
date of a registration statement of MART as is reasonably requested by MART or
by the managing underwriter of such offering, such period not to exceed 30 days
("Market Stand-Off Period").
SECTION 13. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Maryland.
SECTION 14. BENEFITS OF AGREEMENT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto but shall not be assignable
without the prior written consent of all parties.
SECTION 15. NOTICES. All notices and other communications hereunder to
any party shall be in writing and sent to the other parties by personal delivery
or by overnight courier or by first class registered or certified mail, return
receipt requested, postage prepaid, and addressed, if to MART, at 000 Xxxx
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxx 00000, if to any other party
hereto, at the address set forth on Schedule 1 hereto or such other address as
may hereafter be designated by notice to MART. All notices and communications
hereunder shall be deemed given on the date sent in accordance with this
Agreement.
SECTION 16. CHANGES. The terms and provisions of this Agreement may not
be modified or amended, or any of the provisions hereof waived, temporarily or
permanently, except pursuant to the prior written consent of MART and the
parties hereto holding a majority of the Registrable Securities.
9
SECTION 17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument.
SECTION 18. ENTIRE AGREEMENT. This Agreement, together with the
relevant provisions of the Contribution Agreement and the Partnership Agreement,
is intended by the parties as a final expression of their agreement and intended
to be the complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein. There are
no restrictions, warranties or undertakings, other than those set forth or
referred to herein, with respect to such subject matter. This Agreement,
together with the relevant provisions of the Contribution Agreement and the
Partnership Agreement, supersedes all prior agreements and understanding between
the parties with respect to such subject matter.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
10
IN WITNESS WHEREOF, this Registration Rights Agreement has been
executed on the day and year first above written by MART and the Contributors
named on Schedule 1 hereto.
MID-ATLANTIC REALTY TRUST
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxx, Vice President
CONTRIBUTOR
---------------------------------------
Signature
----------------------------------------
Print name
----------------------------------------
Address
----------------------------------------
Tel. #:
---------------------------------
11
Schedule 1
Xxxx X. Xxxxxxx
00 Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxxxx
00 Xxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxxx Xxxxxxxxxx
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Trust F/B/O Xxxxxxx Xxxxxxx
c/o Xxxx X. Xxxxxxx
00 Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Xxxxxxx Xxxxxxx
0 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxxx Family Limited Partnership
00 Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Tripec Associates Limited Partnership
00 Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Radcliffe Properties, Inc.
00 Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxx Irrevocable Trust
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxxxx Xxxxxxx
0000 Xxxxxx Xxxxxx Xxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Xxxxx Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
TSC Associates
x/x Xxxx Xxxxxxxxxx
0 Xxxxxxxxx Xxxxx, Xxx. 000
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx and Xxxxx Xxxxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxxxxx
00000 Xxxxxxxx Xxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Xxxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
TSFP Associates
c/o I. Xxxxxx Xxxxx
1 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Xxxx Xxxxxxxx
00 Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxxx
00000 Xxxxx Xxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx
00000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Xxxxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxx Xxxxxxxxxx
0 Xxxxxxxxx Xxxxx, Xxx. 000
Xxxxxxxxx, Xxxxxxxx 00000
Xxxx Xxxxx
00 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Non-Exempt Marital Trust u/w Xxxxxx Xxxxxxxx
c/o Xxxxxx Xxxxxx, Esquire
Xxxxx & Xxxx, P.A.
900 Mercantile Bank & Trust Building
0 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
