Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of September 29, 1995, among
Mortgage and Realty Trust and the holders listed on the signature pages hereto.
1. DEFINITIONS.
Capitalized terms used in this Registration Rights Agreement (this
"Agreement") but not otherwise defined herein shall have the meanings given to
them in the Plan (as defined below). Each reference herein to an agreement,
document or instrument shall mean that agreement, document or instrument as from
time to time amended, modified or supplemented in accordance with its terms,
including in each case all exhibits, annexes and schedules to such agreement,
document or instrument, all of which are incorporated by reference to such
agreement, document or instrument.
As used in this Agreement, the following capitalized terms shall have the
meanings ascribed to them below:
"Business Day" means a day of the year on which banks are not required or
authorized to close in New York City.
"Common Stock" means the Common Stock, par value $1.00 per share, of MRT
being issued pursuant to the Plan.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
"Holder" means a registered holder of Registrable Securities.
"Initial Holder" means (i) any Person who will initially hold 5% or more of
the outstanding shares of Common Stock upon the Effective Date, (ii) any holder
of New Senior Notes who might be deemed to be an underwriter (within the meaning
of the Securities Act) and who therefore requests Registrable Securities, (iii)
any investment fund for which any Person otherwise within any other subsection
of this definition acts as manager, (iv) any partnership or other entity for
which any Person otherwise within any other subsection of this definition acts
directly or indirectly as a general partner or controlling stockholder and (v)
any Person otherwise affiliated with any Person otherwise within any other
subsection of this definition.
"MRT" means Mortgage and Realty Trust, a Maryland real estate investment
trust.
"Person" means an individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or agency
thereof, or any other entity.
"Plan" means the Plan of Reorganization of MRT dated July 12, 1995 to
which this Agreement is Exhibit C.
"Prospectus" means the prospectus included in any Registration Statement,
as amended or supplemented by any prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by
such Registration Statement or any other amendments and supplements to such
prospectus, including without limitation any preliminary prospectus, any pre-
effective or post-effective amendment and all material incorporated by reference
in any prospectus.
"Registrable Securities" means shares of Common Stock and New Senior Notes
which are issued to any Initial Holder pursuant to the Plan, any such shares of
Common Stock or New Senior Notes transferred by any Initial Holder to a
transferee and any securities issued or issuable in respect of or in exchange
for any of such shares of Common Stock or New Senior Notes by way of a stock
dividend or other distribution, stock split, reverse stock split or other
combination of shares, recapitalization, reclassification, merger, consolidation
or exchange offer. As to any particular Registrable Securities, once issued
such securities shall cease to be Registrable Securities when (i) a Registration
Statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (ii) such securities shall
have been sold pursuant to Rule 144 (or any successor provision) under the
Securities Act, (iii) such securities shall have been otherwise transferred or
exchanged and new certificates for such securities not bearing a legend
restricting further transfer shall have been delivered by MRT, (iv) such
securities shall have ceased to be outstanding or (v) such securities can be
distributed to the public without restrictions of any kind pursuant to Rule
144(k) (or any such successor provision) under the Securities Act.
"Registration Expenses" has the meaning set forth in Section 6.
"Registration Statement" means any registration statement of MRT which
covers Registrable Securities pursuant to the provisions of this Agreement, all
amendments and supplements to such Registration Statement, including post-
effective amendments, and all exhibits and all material incorporated by
reference in such Registration Statement.
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"SEC" means the Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular section
thereof shall be deemed to include a reference to the comparable section, if
any, of any such similar federal statute.
2. SHELF REGISTRATION.
(a) MRT'S OBLIGATION TO FILE. MRT shall file, within 60 days from the
Effective Date, and shall use its best efforts to cause to be declared effective
as soon as possible after such filing, a Registration Statement or Registration
Statements under the Securities Act for the offering on a continuous or delayed
basis in the future of each of the Registrable Securities (the "Shelf
Registration").
(b) MRT'S OBLIGATION TO MAINTAIN. MRT agrees to use its best efforts to
keep the Shelf Registration continuously effective for the period beginning on
the date on which the Shelf Registration is declared effective and ending on the
earlier of (x) the third anniversary of such date plus the number of days of any
suspension of the Holders' right to sell under paragraph (c) of this Section 2
and (y) the first date that there are no Registrable Securities (the "Shelf
Registration Period"). During the Shelf Registration Period, MRT shall
supplement or make amendments to the Shelf Registration, if required by the
Securities Act or by the rules and regulations promulgated thereunder or if
requested by any Holder or underwriter of Registrable Securities, and use its
best effort to have such supplements and amendments declared effective as soon
as practicable after filing.
(c) SUSPENSION OF SALES. MRT shall have the right to require the Holders
not to sell under the Shelf Registration during one or more periods aggregating
not more than 90 days in each twelve-month period during the Shelf Registration
Period in the event that (i) MRT, in accordance with the advice of its counsel,
would be required to disclose in the Prospectus information not otherwise then
required by law to be publicly disclosed and (ii) in the reasonable judgment of
MRT's Board of Trustees, there is a reasonable likelihood that such disclosure,
or any other action to be taken in connection with the Prospectus, would
materially and adversely affect any existing or prospective material business
situation, transaction or negotiation or otherwise materially and adversely
affect MRT.
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(d) NOTICE. MRT shall give each Holder prompt notice in the event that
(i) MRT has suspended sales of Registrable Securities under paragraph (c) of
this Section 2 or (ii) the Registration Statement or any related Prospectus is
not accurate and changes should be made so that such Registration Statement or
Prospectus will not contain any untrue statement of a material fact nor omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading.
(e) INCLUSION OF OTHER SECURITIES. No securities other than Registrable
Securities shall be included in the Shelf Registration; PROVIDED, HOWEVER, that
this paragraph shall not prohibit MRT from filing other registration statements.
3. DEMAND REGISTRATION.
(a) REQUESTS FOR REGISTRATION. Subject to the provisions of this Section
3, any Holder or group of Holders holding at least 10% of the aggregate
Registrable Securities of the applicable class outstanding at such time may, at
any time during the period beginning at the end of the Shelf Registration Period
and ending on the earlier of (x) the seventh anniversary thereof and (y) the
first date on which there are no Registrable Securities (the "Demand
Registration Period") make a written request for registration under the
Securities Act of all or any part of such Holders' Registrable Securities (a
"Demand Registration"). Such request shall specify the amount and kind of
Registrable Securities to be registered and the intended method or methods of
disposition. Within 10 days after receipt of such request, MRT shall send
written notice of such request to all Holders and shall, subject to the
provisions of this Section 3 and of Section 4(b) hereof as if the inclusion of
such shares were pursuant to Section 4, include in such Demand Registration all
Registrable Securities with respect to which MRT receives written requests
(specifying the amount and kind of Registrable Securities to be registered and
the intended method or methods of disposition) for inclusion therein within 20
days after such notice is sent. As promptly as practicable thereafter, MRT
shall file with the SEC a Registration Statement, registering all Registrable
Securities that any Holders have requested MRT to register, for disposition in
accordance with the intended method or methods set forth in their notices to
MRT. MRT shall use its best efforts to cause such Registration Statement to be
declared effective as soon as practicable after filing and to remain effective
until the earlier of (i) 90 days following the date on which it was declared
effective and (ii) the date on which all of the Registrable Securities covered
thereby are disposed of in accordance with the method or methods of disposition
stated therein.
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(b) NUMBER OF REGISTRATIONS. The Holders shall be entitled to request one
Demand Registration during the Demand Registration Period; PROVIDED, HOWEVER,
that MRT will not be obligated to comply with any such request unless (i) such
request is made by a group of Holders holding at least 25% of the aggregate
amount of Registrable Securities, which group shall include at least one Holder
holding at least 10% of the aggregate amount of Registrable Securities of the
applicable class at the time outstanding, and (ii) the Registrable Securities to
be registered in such Demand Registration constitute at least 5% of the
aggregate amount of Registrable Securities of the applicable class at the time
outstanding; and, PROVIDED, FURTHER, that the Holders shall be entitled to
request an additional Demand Registration during the Demand Registration Period
if the Holders are unable to sell all the Registrable Securities in connection
with the initial Demand Registration.
(c) S-3 REGISTRATIONS. Notwithstanding anything in this Section 3 to the
contrary, any Holder may request an unlimited number of Demand Registrations
during the Demand Registration Period, if (i) the Holder, in its written request
for a Demand Registration, undertakes to bear all Registration Expenses incurred
by MRT or reimburse MRT for such costs in connection with the Demand
Registration and (ii) MRT is eligible under the Securities Act to register the
Registrable Securities on a Registration Statement on Form S-3.
(d) SUSPENSION OF REGISTRATION. MRT shall have the right to delay the
filing or effectiveness of a Registration Statement for any Demand Registration
or to require the Holders not to sell under any such Registration Statement,
during one or more periods aggregating not more than 90 days in each twelve-
month period during the Demand Registration Period, in the event that (i) MRT
would, in accordance with the advice of its counsel, be required to disclose in
the Prospectus information not otherwise then required by law to be publicly
disclosed and (ii) in the reasonable judgment of MRT's Board of Trustees, there
is a reasonable likelihood that such disclosure, or any other action to be taken
in connection with the Prospectus, would materially and adversely affect any
existing or prospective material business situation, transaction or negotiation
or otherwise materially and adversely affect MRT.
(e) OFFERING BY MRT. MRT may include in any Demand Registration
additional shares of capital stock to be sold for MRT's account pursuant to such
registration; PROVIDED, HOWEVER, that if the managing underwriter for a Demand
Registration that involves an underwritten offering shall advise MRT that, in
its opinion, the inclusion of the amount and kind of shares of capital stock to
be sold for MRT's account would adversely affect the success of the offering
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for the selling Holders, then the number and kind of shares of capital stock
to be sold for MRT's account shall be reduced (and may be reduced to zero) in
accordance with the managing underwriter's recommendations.
4. INCIDENTAL REGISTRATION.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. If at any time during the
Demand Registration Period, MRT proposes to register any of its equity
securities under the Securities Act, whether or not for sale for its own account
(other than a registration on Form S-4 or Form S-8, or any successor or similar
forms), in a manner that would permit registration of Registrable Securities for
sale to the public under the Securities Act, it will each such time promptly
give written notice to all Holders of its intention to do so, of the
registration form of the SEC that has been selected by MRT and of rights of
Holders under this Section 4 (the "Section 4 Notice"). MRT will use its best
efforts to include in the proposed registration all Registrable Securities that
MRT is requested in writing, within 15 days after the Section 4 Notice is given,
to register by the Holders thereof. No registration effected under this Section
4 shall relieve MRT of its obligations to effect registrations upon request
under Section 3 and, notwithstanding anything to the contrary in Section 3, no
Holder shall have the right to require MRT to register any Registrable
Securities pursuant to Section 3 until the later of (A) the completion of the
distribution of the securities offered and registered pursuant to the Section 4
Notice and (B) 90 days after the date each registration statement effected under
this Section 4 is declared effective.
(b) PRIORITY IN INCIDENTAL REGISTRATION. If the managing underwriter for
a registration pursuant to this Section 4 that involves an underwritten offering
shall advise MRT that, in its opinion, the inclusion of the amount and kind of
Registrable Securities to be sold for the account of Holders would adversely
affect the success of the offering, then the number and kind of Registrable
Securities to be sold for the account of such Holders shall be reduced (and may
be reduced to zero) in accordance with the managing underwriter's
recommendation. In the event that the number of Registrable Securities to be
included in any registration is reduced (but not to zero), the number of such
Registrable Securities included in such registration shall be allocated pro rata
among all requesting Holders, on the basis of the relative number of shares of
such Registrable Securities each such Holder has requested to be included in
such registration. If, as a result of the proration provisions of this Section
4(b), any Holder shall not be entitled to include all Registrable Securities in
a registration pursuant to this Section 4 that such Holder has requested be
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included, such Holder may elect to withdraw its Registrable Securities from the
registration; PROVIDED, HOWEVER, that such withdrawal election shall be
irrevocable and, after making a withdrawal election, a Holder shall no longer
have any right to include Registrable Securities in the registration as to which
such withdrawal election was made.
(c) MERGER, CONSOLIDATION, ETC. Notwithstanding anything in this Section
4 to the contrary, Holders shall not have any right to include their Registrable
Securities in any distribution or registration of equity securities by MRT which
is a result of a merger, consolidation, acquisition, exchange offer,
recapitalization, other reorganization, dividend reinvestment plan, stock option
plan or other employee benefit plan, or any similar transaction having the same
effect.
5. REGISTRATION PROCEDURES.
(a) MRT TO USE BEST EFFORTS. In connection with MRT's registration
obligations pursuant to Sections 2 and 3 hereof, MRT shall use its best efforts
to effect such registrations to permit the sale of such Registrable Securities
in accordance with the intended method or methods of disposition thereof, and
pursuant thereto MRT shall use its best efforts:
(i) to prepare and file with the SEC a Registration Statement or
Registration Statements relating to the registration on any appropriate form
under the Securities Act, and to cause such Registration Statements to become
effective as soon as practicable (but in no event later than 60 days after the
Effective Date) and to remain continuously effective for the time period
required by this Agreement to the extent permitted under the Securities Act;
PROVIDED, HOWEVER, that as soon as practicable but in no event later than ten
Business Days before filing such Registration Statement, any related Prospectus
or any amendment or supplement thereto, other than any amendment or supplement
made solely as a result of incorporation by reference of documents filed with
the SEC subsequent to the filing of such Registration Statement (or, in the case
of any Prospectus supplement or post-effective amendment relating to a proposed
shelf "draw-down" pursuant to Section 2 hereof, two Business Days before the
filing thereof), MRT shall furnish to the Holders of the Registrable Securities
covered by such Registration Statement (or, in the case of any Prospectus
supplement or post-effective amendment relating to a proposed shelf "draw-down"
pursuant to Section 2 hereof, to the selling Holders) and the underwriters, if
any, copies of all such documents proposed to be filed, which documents shall be
subject to the review of such Holders and underwriters; MRT shall cooperate with
such underwriters and Holders
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to prepare, as soon as practicable, a document that is responsive in all
material respects to the reasonable objections of such underwriters and
Holders;
(ii) to prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set forth in Sections
2(a) and 3(a); and to cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed in accordance
with the Securities Act and any rules and regulations promulgated thereunder;
and otherwise to comply with the provisions of the Securities Act as may be
necessary to facilitate the disposition of all Registrable Securities covered by
such Registration Statement during the applicable period in accordance with the
intended method or methods of disposition by the selling Holders thereof set
forth in such Registration Statement or such Prospectus or Prospectus
supplement;
(iii) to notify the selling Holders and the managing underwriters, if any,
promptly if at any time (A) any Prospectus, Registration Statement or amendment
or supplement thereto is filed, (B) any Registration Statement, or any post-
effective amendment thereto, becomes effective, (C) the SEC requests any
amendment or supplement to, or any additional information in respect of, any
Registration Statement or Prospectus, (D) the SEC issues any stop order
suspending the effectiveness of a Registration Statement or initiates any
proceedings for that purpose, (E) the representations and warranties of MRT
contemplated by subclause (B) of clause (xiii) of this paragraph (a) cease to be
true and correct, (F) MRT receives any notice that the qualification of any
Registrable Securities for sale in any jurisdiction has been suspended or that
any proceeding has been initiated for the purpose of suspending such
qualification, or (G) any event occurs which requires that any changes be made
in such Registration Statement or any related Prospectus so that such
Registration Statement or Prospectus will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading;
(iv) to make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the qualification
of any Registrable Securities for sale in any jurisdiction, at the earliest
possible moment;
(v) if requested by the managing underwriters or any Holder of Registrable
Securities being sold in connection with an underwritten offering, promptly to
incorporate into a Prospectus supplement or a post-effective amendment to the
Registration Statement any information which the managing
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underwriters and such Holder reasonably agree is required to be included therein
relating to such sale of Registrable Securities; and to file such supplement or
post-effective amendment as soon as practicable in accordance with the
Securities Act and the rules and regulations promulgated thereunder;
(vi) to furnish to each selling Holder and each managing underwriter, if
any, one signed copy of the Registration Statement or Registration Statements
and any post-effective amendment thereto, including all financial statements and
schedules thereto, all documents incorporated therein by reference and all
exhibits thereto (including exhibits incorporated by reference) as promptly as
practicable after filing such documents with the SEC;
(vii) to deliver to each selling Holder and each underwriter, if any, as
many copies of the Prospectus or Prospectuses (including each preliminary
Prospectus) and any amendment or supplement thereto as such Persons may
reasonably request; and to consent to the use of such Prospectus or any
amendment or supplement thereto by each such selling Holder and underwriter, if
any, in connection with the offering and sale of the Registrable Securities
covered by such Prospectus, amendment or supplement;
(viii) prior to any public offering of Registrable Securities, to register
or qualify Registrable Securities for offer and sale under the securities or
blue sky laws of such jurisdictions as may be reasonably requested by the
Holders of a majority of the Registrable Securities included in such
Registration Statement; to keep each such registration or qualification
effective during the period set forth in Sections 2(a) or 3(a) that the
applicable Registration Statement is required to be kept effective; and to do
any and all other acts or things reasonably necessary to enable the disposition
in such jurisdictions of the Registrable Securities covered by such Registration
Statement; provided, however, that MRT will not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified or to take
any action which would subject it to general service of process in any
jurisdiction where it is not then so subject;
(ix) to cooperate with the selling Holders and the underwriters, if any, in
the preparation and delivery of certificates representing the Registrable
Securities to be sold under the Registration Statement (which certificates shall
be in DTC eligible form), such certificates to be in such denominations and
registered in such names as such selling Holders or managing underwriters may
request at least two Business Days prior to any sale of Registrable Securities
represented by such certificates;
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(x) to cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of MRT to enable the seller or sellers thereof, or the
underwriters, if any, to consummate the disposition of such Registrable
Securities in conformity with federal law and the laws of the jurisdictions in
which such Registrable Securities shall be registered or qualified pursuant to
subclause (viii) above;
(xi) upon the occurrence of any event described in subclause (G) of clause
(iii) above, promptly to prepare and file a supplement or post-effective
amendment to the applicable Registration Statement or Prospectus or any document
incorporated therein by reference, and any other required documents, so that
such Registration Statement and Prospectus will not thereafter contain an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading, and to cause such supplement or
post-effective amendment to become effective as soon as practicable;
(xii) to provide a transfer agent for such Registrable Securities no later
than the effective date of such Registration Statement; to cause any other
Registrable Securities covered by such Registration Statement to be listed (or
included) on each securities exchange (or quotation system operated by a
national securities association) on which securities of the same class and
series, if any, are then listed (or included); and to obtain a CUSIP number for
the Registrable Securities no later than the effective date of such Registration
Statement;
(xiii) to take all other actions in connection therewith as are reasonably
necessary or desirable in order to expedite or facilitate the disposition of the
Registrable Securities included in such Registration Statement and, in the case
of an underwritten offering: (A) to enter into an underwriting agreement in
customary form for the managing underwriter with respect to issuers of similar
market capitalization and reporting and financial histories; (B) to make
representations and warranties to each Holder participating in such offering and
to each of the underwriters, in such form, substance and scope as are
customarily made to the managing underwriters by issuers of similar market
capitalizations and reporting and financial histories; (C) to obtain opinions of
counsel to MRT at the closing of such offering and an update thereof at the time
of effectiveness of any post-effective amendment to such Registration Statement
(other than by reason of incorporation by reference of documents filed with the
SEC) addressed to each Holder participating in such offering and to each of the
underwriters, such opinions and updates to be in customary
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form and to cover the matters customarily covered in opinions obtained in
connection with underwritten offerings by the managing underwriters for issuers
of similar market capitalization and reporting and financial histories; (D) to
obtain "comfort" letters from MRT's independent certified public accountants
addressed to the underwriters and each Holder participating in such offering,
such letters to be in customary form and to cover the matters customarily
covered in "comfort" letters to the managing underwriters obtained in connection
with underwritten offerings by the managing underwriters for issuers of similar
market capitalization and reporting and financial histories; (E) to provide,
in the underwriting agreement to be entered into in connection with such
offering, indemnification provisions and procedures no less favorable than
those set forth in Section 7 hereof with respect to all parties to be
indemnified pursuant to such Section 7; and (F) to timely prepare and deliver
such customary documents and certificates as may be requested by Holders of the
Registrable Securities included in such Registration Statement and the managing
underwriters to evidence compliance with clause (B) of this paragraph (xiii) and
with any customary conditions contained in the underwriting agreement entered
into by MRT in connection with such offering;
(xiv) in the case of any offering other than an underwritten offering:
(A) to obtain an opinion of counsel to MRT at the time of effectiveness of such
Registration Statement covering such offering and an update thereof at the time
of effectiveness of any post-effective amendment to such Registration Statement
(other than by reason of incorporation by reference of documents filed with the
SEC) addressed to each Holder of any Registrable Securities covered by such
Registration Statement, covering such matters as the Holders may reasonably
request; (B) to obtain "comfort" letters from MRT's independent certified public
accountants addressed to each Holder of any Registrable Securities covered by
such Registration Statement, covering matters customarily covered in such
"comfort" letters, or such additional matters as the Holders may reasonably
request; and (C) to deliver a certificate of a senior executive officer of MRT
at the time of effectiveness of such Registration Statement and, upon the
request of Holders of a majority of the Registrable Securities included in such
Registration Statement, updates thereof, such certificates to cover matters
customarily covered in officers' certificates delivered in connection with
underwritten offerings by issuers with similar market capitalization and
reporting and financial histories;
(xv) to make available for inspection by representatives of the Holders
all financial and other records, pertinent corporate documents and properties of
MRT, and to cause MRT's officers, directors and employees to supply all infor-
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mation reasonably requested by any such representatives, in connection with
a Registration Statement;
(xvi) to comply with all applicable rules and regulations of the SEC
relating to such Registration Statement and the distribution of the securities
being offered or otherwise necessary in order to perform MRT's obligations under
this paragraph (a), but not later than 15 months after the effective date of the
Registration Statement, an earnings statement covering the period of at least 12
months beginning with the first full month after the effective date of such
Registration Statement, which earnings statements shall satisfy the provisions
of Section 11(a) of the Securities Act;
(xvii) to cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc. and in the performance of any
customary or required due diligence investigation by any underwriter; and
(xviii) to take all other reasonable steps necessary and appropriate to
effect such registration in the manner contemplated by this Agreement.
(b) HOLDERS' OBLIGATION TO FURNISH INFORMATION. MRT may require each
Holder of Registrable Securities as to which any registration is being effected
to furnish to MRT such information regarding the distribution of such
Registrable Securities as MRT may from time to time reasonably request.
(c) SUSPENSION OF SALES PENDING AMENDMENT OF PROSPECTUS. Each Holder
agrees that, upon receipt of any notice from MRT of the happening of any event
of the kind described in subclauses (C) and (G) of clause (a)(iii) above, such
Holder will suspend the disposition of any Registrable Securities covered by
such Registration Statement or Prospectus until such Holder's receipt of the
copies of a supplemented or amended Prospectus contemplated by clause (a)(xi)
above, or until it is advised in writing by MRT that the use of the applicable
Prospectus may be resumed. If MRT shall have given any such notice during a
period when Shelf Registration or a Demand Registration is in effect, the three
year period described in Section 2(b) and the 90-day period described in Section
3(a) shall be extended by the number of days of such suspension period.
6. REGISTRATION EXPENSES.
Subject to Section 3(c), all expenses incident to MRT's performance of or
compliance with its obligations under this Agreement, including without
limitation all (i) registration and filing fees, (ii) fees and expenses of
compliance with securities or blue sky laws (including fees and disburse-
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ments of counsel in connection with blue sky qualifications or registrations
of (or the obtaining of exemptions therefrom), or legal investment memoranda
regarding, the Registrable Securities), (iii) printing expenses (including
expenses of printing Prospectuses), (iv) fees and disbursements of its counsel
and its independent certified public accountants (including the expenses of any
special audit or "comfort" letters required by or incident to such performance
or compliance, listing fees and expenses or NASD fees), (v) messenger and
delivery expenses, (vi) internal expenses (including all salaries and expenses
of its officers and employees performing legal or accounting duties), (vii)
securities acts liability insurance (if MRT elects to obtain such insurance),
(viii) reasonable fees and expenses of any special experts retained by MRT in
connection with any registration hereunder, (ix) reasonable fees and expenses
of other Persons retained by MRT in connection with registration hereunder,
and (x) reasonable fees and expenses of up to two counsel for the Holders of
Registrable Securities covered by each Registration Statement, with such counsel
to be selected by Holders of a majority of such Registrable Securities (all such
expenses being herein referred to as "Registration Expenses"), shall be borne
by MRT; PROVIDED, HOWEVER, that Registration Expenses shall not include any
underwriting discounts, commissions, fees or transfer taxes, if any,
attributable to the sale of the Registrable Securities.
7. INDEMNIFICATION.
(a) INDEMNIFICATION BY MRT. In the event of any registration of any
securities of MRT under the Securities Act pursuant to Sections 2, 3 or 4
hereof, MRT will, and hereby does, indemnify and hold harmless, to the extent
permitted by law, the seller of any Registrable Securities covered by such
Registration Statement, its directors and officers or general and limited
partners (and the directors and officers thereof), each other Person who
participates as an underwriter, if any, in the offering or sale of such
securities and each other Person, if any, who controls such seller or any such
underwriter within the meaning of the Securities Act, against any and all
losses, claims, damages or liabilities, joint or several, and expenses
(including any amounts paid in any settlement effected with MRT's consent, which
consent shall not be unreasonably withheld) to which such seller or any such
director, officer, general or limited partner, underwriter or controlling Person
may become subject under the Securities Act, common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement under which such securities were registered under
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the Securities Act or 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, (ii) any untrue statement or alleged untrue statement
of a material fact contained in any preliminary Prospectus, together with the
documents incorporated by reference therein (as amended or supplemented if MRT
shall have filed with the SEC any amendment thereof or supplement thereto), if
used prior to the effective date of such Registration Statement, or contained
in the Prospectus, together with the documents incorporated by reference
therein (as amended or supplemented if MRT shall have filed with the SEC any
amendment thereof or supplement thereto), or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading or (iii) any violation by MRT of any federal,
state or common law rule or regulation applicable to MRT and relating to action
required of or inaction by MRT in connection with any such registration, and
MRT will reimburse such seller and each such director, officer, general or
limited partner, underwriter and controlling Person for any legal or any other
expenses reasonably incurred by any of them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided,
however, that MRT shall not be liable to any such seller or any such director,
officer, general or limited partner, underwriter or controlling Person in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement or amendment thereof or supplement thereto
or in any such preliminary, final or summary Prospectus in reliance upon and in
conformity with written information furnished to MRT by or on behalf of such
seller or such director, officer, general or limited partner, underwriter or
controlling Person, specifically stating that it is for use in the preparation
thereof.
(b) INDEMNIFICATION BY THE SELLERS. In consideration of MRT's including
any Registrable Securities in any Registration Statement filed in accordance
with Sections 2, 3 or 4 hereof, the prospective seller of such Registrable
Securities and any underwriter shall be deemed to have agreed to indemnify and
hold harmless (in the same manner and to the same extent as set forth in Section
7(a) hereof) MRT and its directors, trustees and officers and each person
controlling MRT within the meaning of the Securities Act and all other
prospective sellers and their directors, officers or respective controlling
Persons with respect to any statement or alleged statement in or omission or
alleged omission from such Registration Statement, any preliminary, final or
summary Prospectus contained therein, or any amendment or
14
supplement, if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to MRT or its representatives by or on behalf of such seller or
underwriter specifically stating that it is for use in the preparation of such
Registration Statement, preliminary, final or summary Prospectus or amendment
or supplement. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of MRT or any of the prospective
sellers or any of their directors, officers or controlling Persons.
(c) NOTICES OF CLAIMS. Promptly after receipt by an indemnified party
hereunder of written notice of the commencement of any action or proceeding with
respect to which a claim for indemnification may be made pursuant to this
Section 7, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of the
commencement of such action; PROVIDED, HOWEVER, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Section 7, except to the
extent that the indemnifying party is prejudiced by such failure of any
indemnified party to give notice. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall, at its own expense, be entitled to
participate therein, and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party and the indemnifying
party shall not be liable to such indemnified party for any legal or other
expenses; PROVIDED, HOWEVER, that if, in the indemnified party's reasonable
judgment, a conflict of interest between the indemnified party and the
indemnifying party exists in respect of such claim, then such indemnified party
shall have the right to participate in the defense of such claim and to employ
one firm of attorneys at the indemnifying party's expense to represent such
indemnified party. No indemnified party will consent to entry of any judgment
or enter into any settlement without the indemnifying party's consent to such
judgment or settlement, which shall not be unreasonably withheld.
(d) OTHER INDEMNIFICATION. Indemnification similar to that specified in
the preceding paragraphs of this Section 7 (with appropriate modifications)
shall be given by MRT and each seller of Registrable Securities with respect to
any required registration or other qualification of securities under any state
securities and blue sky laws.
(e) CONTRIBUTION. If the indemnification provided for in this Section 7
is unavailable or insufficient to hold
15
harmless an indemnified party under this Section 7, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred to in this
Section 7 in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and the indemnified party on the other
hand in connection with statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statements or omission. MRT agrees, and the
Holders (in consideration of MRT's including any Registrable Securities in any
Registration Statement filed in accordance with Sections 2, 3 or 4 hereof) shall
be deemed to have agreed, that it would not be just and equitable if
contributions pursuant to this Section 7(e) were to be 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 first sentence of this
Section 7(e). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of
this Section 7(e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim (which shall be limited as provided in
Section 7(c) if the indemnifying party has assumed the defense of any such
action in accordance with the provisions thereof) which is the subject of this
Section 7(e). No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Promptly after receipt by an indemnified party under this
Section 7(e) of notice of the commencement of any action against such party in
respect of which a claim for contribution may be made against an indemnifying
party under this Section 7(e), such indemnified party shall notify the
indemnifying party in writing of the commencement thereof if the notice
specified in Section 7(c) has not been given with respect to such action;
provided, however, that the omission so to notify the indemnifying party shall
not relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise under this Section 7(e), except to the extent that
the indemnifying party is prejudiced by such failure of any indemnified party to
give notice. Notwithstanding anything in this Section 7(e) to the contrary, no
indemnifying party (other than MRT) shall be required pursuant to this Section
7(e) to contribute any
16
amount in excess of the proceeds received by such indemnifying party from the
sale of Registrable Securities in the offering to which the losses, claims,
damages or liabilities of the indemnified parties relate.
8. RULE 144 AND RULE 144A.
(a) MRT shall file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations promulgated
thereunder, so long as it is subject to such reporting requirements, all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemptions provided by Rule 144, as such Rule may be amended from time to
time or any similar rule or regulation hereafter adopted by the SEC. Upon the
request of any Holder, MRT shall deliver to such Holder a written statement
stating whether it has complied with such requirements.
(b) MRT shall provide, upon the request of any Holder, to any prospective
purchaser of any Registrable Securities, all information that may be required to
be delivered to such purchaser to enable such Holder of Registrable Securities
to sell to such purchaser such Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (i) Rule
144A under the Securities Act, as such Rule may be amended from time to time, or
(ii) any similar rule or regulation hereafter adopted by the SEC subject to
receipt of an appropriate confidentiality agreement from such prospective
purchasers in form and substance reasonably satisfactory to MRT (with
appropriate exceptions to permit resale). Upon the request of any Holder, MRT
shall deliver to such Holder a written statement as to whether it has complied
with such requirements.
9. UNDERWRITTEN REGISTRATIONS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable Securities
covered by the Shelf Registration or any Demand Registration are to be sold in
an underwritten offering, the underwriter or underwriters and managing
underwriter or managing underwriters that will administer the offering shall be
selected, after consultation with MRT, by, and the terms of any underwriting
agreement and other underwriting arrangements shall be approved, after
consultation with MRT, by, the Holders of a majority in aggregate amount of
Registrable Securities included in such offering.
(b) AGREEMENTS OF SELLING HOLDERS. No Holder shall sell any of its
Registrable Securities in any underwritten
17
offering pursuant to a registration hereunder unless such Holder agrees to
become a party to the underwriting agreement, provided that the Holders may
require that any and all representations and warranties by, and other agreements
on the part of, MRT to and for the benefit of the underwriters shall also be
made to and for the benefit of such Holders of Registrable Securities and that
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreements be conditions precedent to the obligations
of such Holders, and further provided that any such Holder of Registrable
Securities shall not be required to make any representations, warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such Holder, such Holder's Registrable
Securities and such Holder's intended method of distribution and other
representations required by law.
10. HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALES BY HOLDERS. To the extent not
inconsistent with applicable law, each Holder that is timely notified in writing
by the managing underwriter or underwriters shall not effect any public sale or
distribution (including a sale pursuant to Rule 144) of any issue being
registered in an underwritten offering (other than pursuant to an employee stock
option, stock purchase, stock bonus or similar plan, pursuant to a merger, an
exchange offer or a transaction of the type specified in Rule 145(a) under the
Securities Act or pursuant to a "shelf" registration), any securities of MRT
similar to any such issue or any securities of MRT convertible into or
exchangeable or exercisable for any such issue or any similar issue, during the
10 day period prior to the effective date of the applicable registration
statement, or during the period beginning on such effective date and ending on
the later of (i) the completion of the distribution of such securities pursuant
to such offering and (ii) 90 days after such effective date, except as part of
such registration.
(b) RESTRICTIONS ON PUBLIC SALES BY MRT. If and to the extent requested
by the managing underwriter or underwriters of an underwritten offering, MRT
shall not effect any public sale or distribution of any issue of the same class
or series as Registrable Securities being registered in an underwritten offering
(other than pursuant to an employee stock option, stock purchase, stock bonus or
similar plan, pursuant to a merger, exchange offer or a transaction of the type
specified in Rule 145(a) under the Securities Act or pursuant to a "shelf"
registration), any securities of MRT similar to any such issue or any securities
of MRT convertible into or exchangeable or exercisable for any such issue,
during the 10 day period prior to the
18
effective date of the applicable registration statement, or during the period
beginning on such effective date and ending on the later of (i) the completion
of the distribution of such securities pursuant to such offering and (ii) 90
days after such effective date, except as part of such registration.
11. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. This Agreement may be amended and MRT may
take any action herein prohibited, or omit to perform any act herein required to
be performed by it, only if MRT shall have obtained the written consent to such
amendment, action or omission to act, of the Holders of at least a majority of
the Registrable Securities of each class then outstanding (and, in the case of
any amendment, action or omission to act that adversely affects any Holder or
group of Holders differently from any of the other Holders, the written consent
of such Holder or group of Holders). The Holders shall be bound from and after
the date of the receipt of a written notice from MRT setting forth such
amendment or waiver by any consent authorized by this Section 11(a).
(b) NO INCONSISTENT AGREEMENTS. MRT shall not, on or after the date of
this Agreement, enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. MRT has not previously entered
into any agreement with respect to its securities granting any registration
rights to any Person other than the registration rights granted pursuant to this
Agreement.
(c) SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement shall be binding
upon and shall inure to the benefit of MRT, the Holders and their respective
successors, assigns and transferees.
(d) INTEGRATION. This Agreement and the documents referred to herein or
delivered pursuant hereto that form a part hereof contain the entire
understanding of MRT and the Initial Holders with respect to its subject matter.
There are no restrictions, agreements, promises, representations, warranties,
covenants or undertakings with respect to the subject matter hereof other than
those expressly set forth herein. This Agreement supersedes all prior
agreements and understandings between MRT and the Initial Holders with respect
to its subject matter.
(e) REMEDIES. Each Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of
19
its rights under this Agreement. MRT agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate. In any
action or proceeding brought to enforce any provision of this Agreement or
where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
(f) NOTICES. All notices and other communications provided for hereunder
shall be in writing and shall be sent by first class mail, telecopier or hand
delivery:
If to MRT, to:
Mortgage and Realty Trust
0000 Xxx Xxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxxxxxx 00000-0000
Attention: Treasurer
Telecopy No.: (000) 000-0000
Telephone Confirmation: (000) 000-0000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
000 Xxxxx Xxxxxxxx Xxxxxx (00xx Xxxxx)
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Telephone Confirmation: (000) 000-0000
If to any of the Holders, to the address of such Holders as shown in the
stock record books of MRT, with a copy to each of the following:
O'Melveny & Xxxxx
000 Xxxxx Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy No: (000) 000-0000
Telephone Confirmation: (000) 000-0000
-and-
Weil, Gotshal & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Simeon Gold, Esq.
Telecopy No.: (000) 000-0000
Telephone Confirmation: (000) 000-0000
20
all such notices and communications shall be deemed to have been given or made
(i) when delivered by hand, (ii) five Business Days after being deposited in the
mail, postage prepaid or (iii) when telecopied, receipt acknowledged. MRT may
change its address for receipt of notices by notice of such change given in the
manner contemplated hereby to the Holders.
(g) DESCRIPTIVE HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit, expand or otherwise affect
the meaning of the terms contained herein.
(h) SEVERABILITY. In the event that any one or more of the provisions
hereof is held invalid, illegal or unenforceable in any respect for any reason,
the validity, legality and enforceability of any such provision, in every other
respect and of the remaining provisions hereof shall not be in any way impaired,
it being intended that all rights, powers and privileges of MRT and the Holders
shall be enforceable to the fullest extent permitted by law.
(i) GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without regard to
the principles thereof relating to conflict of laws thereof, as if it were a
contract between MRT and the Initial Holders made and to be performed entirely
within that state.
(j) TERMINATION. This Agreement shall terminate, and thereby become null
and void, at the end of the Demand Registration period; PROVIDED, HOWEVER, that
the provisions of Section 7 hereof shall survive the termination of this
Agreement.
(k) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties in separate counterparts, copies of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be executed by their respective duly authorized officers or
other representatives as of the day and year first above written.
MORTGAGE AND REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Title: C.F.O.
MUTUAL SERIES FUND, INC.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Title: Vice President
INTERMARKET CORP.
By: /s/ Xxx X. Xxxxxxxxx
-------------------------------
Title: Managing Director
XXXXXX, XXXXXX & CO.
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Title: Vice President
EMERALD PARTNERS
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Title: Authorized Signatory
XXXXXX-XXXXXXXX INVESTMENT
MANAGEMENT, L.P.
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Title: Vice President
22
