EXHIBIT 99.1(a)
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
(RD Capital Transaction)
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (this "Agreement"), is
made by and among Mark Centers Trust, a Maryland real estate investment trust
(the "Company"), RD Properties, L.P. VI, RD Properties, L.P. VIA, and RD
Properties, L.P. VIB, each a Delaware limited partnership (individually, an "RDC
Fund" and collectively, the "RDC Funds"), and each of the Owners (as such term
is defined in that certain Contribution and Share Purchase Agreement (the
"Contribution Agreement") among the Contributing Owners (as defined in the
Contribution Agreement), the Trust, the Fund, the Contributing Entities (as
defined in the Contribution Agreement) and Mark Centers Limited Partnership, a
Delaware limited partnership ( the "Partnership"), who are receiving limited
partnership interests in the Partnership ("OP Units") and/or common shares of
beneficial interest in the Trust at the Closing (the "Closing Date") of the
transactions contemplated by the Contribution Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and intending to be legally bound hereby, the
Company, the RDC Funds and the Contributing Owners hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
(a) "Commission" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
(b) "Conversion Shares" means the Shares issuable upon exchange of
the OP Units from time to time by the Owners.
(c) "Exchange Act" means the Securities Exchange Act of 1934 or any
successor federal statute, and the rules and regulations of the Commission
issued under such Exchange Act, as they each may, from time to time, be in
effect.
(d) "Fund Shares" means the Shares to be issued to the RDC Funds in
consideration of the Cash Investment (as such term is defined in the
Contribution Agreement).
(e) "Holder(s)" means a record holder of Registrable Shares
entitled to the rights arising hereunder.
(f) "Participating Holder" means a Holder whose Registrable Shares
are included in a Registration Statement.
(g) "Registration Expenses" means the expenses described in Section
6 hereof.
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(h) "Registration Statement" means a registration statement filed
by the Company with the Commission for a public offering and sale of equity
securities of the Company (other than a registration statement on Form S-8 or
Form S-4, or their successors, or any other form for a limited purpose, or any
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
(i) "Registrable Shares" means the Fund Shares and the Conversion
Shares and any other Shares issued in respect of such shares (because of share
splits, share dividends, reclassifications, recapitalizations, or similar
events); provided, however, that Shares which are Registrable Shares shall cease
to be Registrable Shares (x) upon any sale pursuant to a Registration Statement,
or any other sale or transfer of the Registrable Shares in any manner to any
person or entity other than as expressly provided herein, or (y) in the event
that Registrable Shares may be freely sold and/or transferred pursuant to Rule
144(k) under the Securities Act; provided, however, that notwithstanding the
provisions of clause (y), for purposes of such clause (y), the Fund Shares shall
be deemed to be Registrable Shares until 42 months after the Closing Date.
(j) "Securities Act" means the Securities Act of 1933 or any
successor federal statute, and the rules and regulations of the Commission
issued under such Securities Act, as they each may, from time to time, be in
effect.
(k) "Shares" means Common Shares of Beneficial Interest of the
Company, par value $.001 per share.
2. Piggy-Back Registration.
(a) If at any time and from time to time during the period
commencing upon the first anniversary of the Closing Date (the "Anniversary
Date") and ending upon the earlier of (i) such time as when all of the
Registrable Shares have been disposed of and (ii) three years after the
conversion into Shares of all OP Units issued under the Contribution Agreement,
the Company proposes to file a Registration Statement, it will, prior to such
filing, give written notice to the RDC Funds and to the Owners of its intention
to do so and, upon the written request of the RDC Funds and the Owners given
within 20 days after the Company provides such notice (which request shall
specify the number Registrable Shares intended to be disposed of by each RDC
Fund and such responding Owner and the intended method of disposition thereof),
the Company, subject to the provisions hereof, shall use commercially reasonable
efforts to cause all Registrable Shares which the Company has been requested by
the RDC Funds and the Owners to register to be registered under the Securities
Act to the extent necessary to permit their sale or other disposition in
accordance with the intended methods of distribution specified in the request of
the RDC Funds and the Owners; provided, that the Company shall have the right to
postpone or withdraw any registration effected pursuant to this Section 2(a)
hereof without obligation or liability to the RDC Funds and the Owners.
(b) In connection with any offering under this Section 2 involving
an underwriting, the Company shall not be required to include any Registrable
Shares in such underwriting unless the Participating Holders accept the terms of
the underwriting as agreed upon between the Company and the underwriters
selected by it, and then only in such quantity as will not, in the opinion of
the underwriters, jeopardize the success of the offering by and for the account
of the
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Company. If, in the opinion of the managing underwriter, the registration of
all, or part of, theRegistrable Shares which the holders thereof have requested
be included would materially and adversely affect such public offering, then the
Company shall be required to include in the underwriting only that number of
Registrable Shares, if any, which the managing underwriter believes may be sold
without causing such material and adverse effect. If the number of Registrable
Shares to be included in the underwriting in accordance with the foregoing is
less than the total number of Registrable Shares which the holders thereof have
requested be included, then the holders of the Registrable Shares shall
participate in the underwriting pro rata based upon the relative number of
Shares each holder of such other securities has requested be included in such
registration; provided, however, that nothing herein shall be construed to
modify or otherwise impair or limit the rights of any holder of Shares or other
person to whom registration rights have been granted by the Company prior to the
date hereof and where such rights would be superior to the rights of the Holders
of Registrable Shares.
3. Demand Registration Rights. Upon the request of either (i) the RDC
Funds or (ii) the Owners owning of record not less than sixty-five percent (65%)
of the Registrable Shares owned of record by all Owners (the "Demanding
Holders"), subject to the provisions hereof, the Company will use commercially
reasonable efforts to cause such of the Registrable Shares as may be requested
by the RDC Funds and/or the Demanding Holders to be registered under the
Securities Act as promptly as possible. The Company shall not be required to
effect more than two registrations per year pursuant to this Section 3;
provided, however, that each obligation shall be deemed satisfied when a
Registration Statement covering Registrable Shares specified in notices received
as aforesaid, for sale in accordance with the method of disposition specified by
the RDC Funds and/or the Demanding Holders shall become effective and shall have
remained effective for at least 60 days (provided that if the reason the
Registration Statement does not become effective is as a direct result of the
gross negligence or willful misconduct of any one or more of the RDC Funds or
another Demanding Holder, such attempt at registration shall satisfy the
requirements of a "demand" registration under this Section 3). The Company will
be entitled to include in any registration statement referred to in this Section
3 for sale in accordance with the method of disposition specified above,
securities to be sold by the Company for its own account and securities of any
other holder having registration rights, unless in the opinion of the managing
underwriter (if such method of disposition shall be an underwritten public
offering), such inclusion would materially and adversely affect the marketing of
the Registrable Shares to be sold.
4. Certain Shelf Registration. In addition to the registration rights
granted by the Company in Sections 2 and 3 hereof, on the Anniversary Date or as
soon thereafter as is reasonably practicable, the Company shall, at its expense,
use commercially reasonable efforts to register the Registrable Shares for
resale including for issuance upon conversion or exchange of OP Units, through a
shelf Registration Statement pursuant to Rule 415 under the Securities Act,
which shelf Registration Statement shall cover only the Registrable Shares. The
Company shall, at its expense, use commercially reasonable efforts to maintain
the effectiveness of such shelf Registration Statement until the earlier of (i)
such time as when all of the Registrable Shares have been disposed of or (ii)
three years after the conversion or exchange of all of the OP Units issued under
the Contribution Agreement into Shares.
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5. Registration Procedures. If and whenever the Company is required by
the provisions of this Agreement to effect the registration of any of the
Registrable Shares under the Securities Act, the Company shall:
(a) prepare and file with the Commission a Registration Statement
with respect to such Registrable Shares and use commercially reasonable efforts
to cause that Registration Statement to become and remain effective, provided,
however, that the Company may discontinue any registration of its securities
which is being effected pursuant to Section 2 herein at any time prior to the
effective date of the Registration Statement relating thereto;
(b) subject to the provision of Section 4, as soon as reasonably
practicable prepare and file with the Commission any amendments and supplements
to the Registration Statement and the prospectus included in the Registration
Statement as may be necessary to keep the Registration Statement effective until
the earlier of (i) the period of time required by the Commission, or (ii) 180
days from the effective date for registrations pursuant to Section 2 and 60 days
from the effective date for registrations pursuant to Section 3;
(c) as soon as reasonably practicable furnish to each Participating
Holder such reasonable numbers of copies of the prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as the Participating Holders may reasonably
request in order to facilitate the public sale or other disposition of the
Registrable Shares owned by such Participating Holders and included in the
Registration Statement;
(d) as soon as reasonably practicable use commercially reasonable
efforts to register or qualify the Registrable Shares covered by the
Registration Statement under the securities or Blue Sky laws of states within
the United States as the Participating Holders shall reasonably request;
provided, however, that the Company shall not be required in connection with
this subsection 5(d) to: (i) qualify as a foreign corporation in any
jurisdiction where, but for the requirements of this subsection 5(d), it would
not be obligated to be so qualified; (ii) execute a general consent to service
of process in any jurisdiction; (iii) subject itself to taxation in any such
jurisdiction; or (iv) register in any state requiring, as a condition to
registration, escrow or surrender of any Company securities held by any security
holder other than the Participating Holders; and
(e) if an underwritten public offering, obtain a comfort letter
from the Company's independent public accountants in customary form and covering
such matters of the type customarily covered by comfort letters and an opinion
from the Company's counsel in the form filed as an exhibit to the Registration
Statement, in each case addressed to the Participating Holders.
If the Company has delivered a preliminary or final prospectus to a
Participating Holder and, after having done so, the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify such Participating Holder and, if requested, such Participating Holder
shall immediately cease making offers of Registrable Shares and return all
prospectuses to the Company. The Company shall promptly provide Participating
Holders with revised prospectuses and, following receipt of the revised
prospectuses, Participating Holders shall be free to resume making offers of the
Registrable Shares.
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Notwithstanding any other provisions of this Agreement to the
contrary, upon receipt by a Participating Holder of a written notice signed by
the Chief Executive Officer, Chief Operating Officer or Chief Financial Officer
of the Company, to the effect set forth below, the Company shall not be
obligated during a reasonable period of time thereafter to effect any
registrations pursuant to this Agreement, and each such Participating Holder
agrees that it will immediately suspend sales of Shares under any effective
Registration Statement for a reasonable period of time, in either case not to
exceed 90 days, at any time during which, in the Company's reasonable judgment,
(i) there is a development involving the Company or any of its affiliates which
is material but which has not yet been publicly disclosed or (ii) sales pursuant
to the Registration Statement would materially and adversely affect an unwritten
public offering for the account of the Company or any other material financing
project where a proposed or pending material merger or other material
acquisition or material business combination or material disposition of the
Company's assets, to which the Company or any of its affiliates is, or is
expected to be, a party. In the event a registration is postponed or sales by a
Participating Holder pursuant to an effective Registration Statement are
suspended in accordance with this paragraph, there shall be added to the period
during which the Company is obligated keep a Registration Statement effective
the number of days for which the Registration Statement was postponed or sales
were suspended.
6. Expenses of Registration. The Company will pay all Registration
Expenses of all registrations under this Agreement. For purposes of this
Agreement, the term "Registration Expenses" shall mean all expenses incurred by
the Company in complying with this Agreement, including without limitation, all
registration and filing fees, exchange listing fees, printing expenses, the fees
and disbursements of counsel for the Company and the reasonable fees and
disbursements of one counsel selected by the Participating Holders, the fees and
disbursements of the Company's accountants, state Blue Sky fees and expenses,
and the expense of any special audits incident to or required by any such
registration, but excluding underwriting discounts and selling commissions.
7. Indemnification.
(a) Indemnification of Participating Holders. In the event of any
registration of any of the Registrable Shares under the Securities Act pursuant
to this Agreement, the Company will indemnify and hold harmless each
Participating Holder, each of its directors and officers and each other person,
if any, who controls such Participating Holder within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages or
liabilities to which such Participating Holder or controlling person may become
subject under the Securities Act, the Exchange Act, Blue Sky laws or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement under
which such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
and the Company will reimburse such Participating Holder and each such
controlling person for any legal or any other expenses reasonably incurred by
such Participating Holder or controlling person in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to
743441.2
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the extent that any such loss, claim, damage or liability arises
out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by or on behalf of any Participating
Holder or controlling person specifically for use in the preparation thereof;
and provided further, however, that any indemnification contained in this
paragraph with respect to any preliminary prospectus shall not inure to the
benefit of any person who otherwise is entitled to indemnification hereunder on
account of any loss, liability, claim, damage or expense if a copy of an amended
or supplemental preliminary prospectus, or the final prospectus, shall have been
delivered or sent to such person within the time required by the Securities Act,
and the untrue statement or omission of a material fact was corrected in such
amended or supplemental preliminary prospectus or final prospectus and provided
that such person did not deliver such amended or supplemental preliminary
prospectus or final prospectus on a timely basis.
(b) Indemnification of the Company. In the event of any
registration of any of the Registrable Shares under the Securities Act pursuant
to this Agreement, each Participating Holder will indemnify and hold harmless
the Company, each of its directors and officers and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages or liabilities, joint or several, to
which the Company, such directors and officers or controlling persons may become
subject under the Securities Act, Exchange Act, Blue Sky laws or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
if the statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of such
Participating Holder or controlling person, specifically for use in connection
with the preparation of such Registration Statement, prospectus, amendment or
supplement. No Participating Holder shall be liable pursuant to this Section
7(b) for any amount in excess of the proceeds of the offering received by such
Participating Holder.
(c) Notice of Claim. Each party entitled to indemnification under
this Section 7 (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld); and, provided, further, 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 unless the failure to
provide such notice materially prejudices the defense by the Indemnifying Party
against such claim. The Indemnified Party may participate in such defense at
such party's expense (provided that the counsel of the Indemnifying Party shall
control the defense of such claim or proceeding); provided, however, that the
Indemnifying Party shall pay such expense if representation of such Indemnified
Party by the counsel retained by the Indemnifying Party would, in the opinion of
counsel of the Indemnified Party, be inappropriate due to actual or potential
743441.2
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differing interests between the Indemnified Party and any other party
represented by such counsel in such proceeding, it being understood, however,
that in such event, the Indemnifying Party shall be liable for the reasonable
fees and expenses of only one counsel for the Indemnified Parties. No
Indemnifying Party, in the defense of any such claim or litigation shall as to
an Indemnified Party, except with the consent of such Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgment or
settle such claim or litigation without the prior written consent of the
Indemnifying Party.
8. Underwriting Agreement. In the event that Registrable Shares are
sold pursuant to a Registration Statement in an underwritten offering, each
Participating Holder agrees to enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for the underwriting
(together with the Company and other holders of securities distributing their
Shares through such underwriting), containing customary representations and
warranties with respect to such Participating Holder, including without
limitation, customary provisions with respect to indemnification by such
Participating Holder of the underwriters of such offering.
9. Rule 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder (or, if the Company
is not required to file such reports, it will, upon the request of the holders
of the Registrable Securities, make publicly available such information as
necessary to permit sales pursuant to Rule 144 under the Securities Act) and it
will do all such other acts and things from time to time as reasonably requested
by the holders of the Registrable Securities to the extent required from time to
time to enable the holders of the Registrable Shares to sell Registrable Shares
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereunder adopted
by the Commission.
10. Cooperation. The Holders shall furnish to the Company such
information regarding the Holders and the distribution proposed by Participating
Holders as the Company may from time to time request in writing, and shall do
such reasonable acts and things as the Company may from time to time request,
with respect to any registration, qualification or compliance referred to in
this Agreement and in order to permit the Company to comply with the
requirements of law. Any failure by a Holder to make available such information
or to do such acts and things shall constitute a waiver by such Holder of its
rights to include such Holder's Registrable Shares in any such registration.
11. Standstill. Each Holder, if requested by the Company and an
underwriter of Shares or other securities of the Company, shall agree not to
sell or otherwise transfer or dispose of any Registrable Shares or other
securities of the Company held by such Holder for a specified period of time
(not to exceed 180 days) following the effective date of a Registration
Statement. Such agreement shall be in writing in a form satisfactory to the
Company and such underwriter. The Company may impose stop transfer instructions
with respect to the Registrable Shares or other securities subject to the
foregoing restriction until the end of the standstill period.
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12. Restriction on Resale. Unless otherwise agreed by the Company,
until the date on which there are no Registrable Shares, each Holder agrees that
it will not resell such Registrable Shares without registration under the
Securities Act, compliance with Rule 144 under the Securities Act or an opinion
of counsel for the Company, addressed to the Company, to the effect that no such
registration is required. All reasonable costs, fees and expenses of counsel in
connection with such opinion shall be borne by the Company.
13. Lock-Up Agreement. In consideration of the Company's agreement to
provide the Holders with the registration rights as set forth in this Agreement,
each RDC Fund and each Contributing Owner receiving OP Units or Shares agrees
with the Partnership and the Trust that each will not sell, transfer, assign, or
otherwise transfer the OP Units or the Shares to be issued at the Closing (or
Conversion Shares) for one year after the Closing. Notwithstanding the
foregoing, the aforementioned prohibition shall not apply to a transfer of OP
Units (which shall nonetheless comply with any requirements or conditions to
transfer in the Partnership Agreement of the Partnership) or Shares to a
Permitted Transferee or bona fide pledge of OP Units or Shares (provided that
the pledgee agrees to be bound by the terms of this Agreement as if an original
signatory thereto). For purposes of this Section 13, the term "Permitted
Transferees" means (i) any partner or other equity owner of an RDC Fund or an
Owner; (ii) any equity owner of any partner or other equity owner of an RDC Fund
or an Owner; (iii) members of the Immediate Family (as defined below) of any
equity owner of an RDC Fund or an Owner (or any equity thereof) and trusts for
the benefit of one or more members of the Immediate Family of an RDC Fund or an
Owner (or any equity owner thereof) created for estate and/or gift tax purposes
and/or (iv) any public charity, public foundation or charitable institution as
defined in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
For purposes of this Section 13, the term "Immediate Family" means, with respect
to any natural person, such natural person's spouse, parents, parents-in-law,
descendants, nephews, nieces, brothers, sisters, brothers-in- law,
sisters-in-law and children-in-law. A transfer to any Permitted Transferee shall
not be deemed effective, and the Company may issue stop transfer instructions to
its transfer agent of the Shares in connection with a purported transfer, unless
and until the transferor shall give the Company written notice stating the name
and address of the Permitted Transferee and identifying the securities which are
being transferred and the Company shall have received the written agreement of
the Permitted Transferee to be bound by the terms of this Agreement as if an
original signatory hereto.
14. Miscellaneous.
(a) Controlling Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
(b) Notices. All notices and other communications hereunder shall
be in writing and shall be sent by certified mail, postage prepaid, return
receipt requested; by an overnight express courier service that provides written
confirmation of delivery; or by facsimile with written confirmation by the
sending machine or with telephone confirmation of receipt, addressed as follows:
743441.2
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(i) If to Company:
Mark Centers Trust
600 Third Avenue
Kingston, PA 18704-1679
Attention: Chief Executive Officer
(ii) If to a Holder, to the address of such Holder
appearing below the Holder's signature on the
signature page hereof:
Any party may alter the address to which communications or copies are
to be sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice. Notices given hereunder
shall be deemed received upon actual receipt thereof or, in the case of notice
by mail, upon two days from the date notice is first deposited in the mail in
the manner provided above
(c) Binding Nature of Agreement. This Agreement shall be binding
upon and inure to the benefit of Company and its successors and assigns and
shall be binding upon each Holder and its heirs, personal properties, successors
and assigns.
(d) Transfer or Assignment of Registration Rights. Subject to
Section 13 hereof, the rights with respect to any Registrable Shares to cause
the Company to register such securities granted to a Holder by the Company under
this Agreement may be transferred or assigned by a Holder, in whole or in part,
to a transferee or assignee of any Registrable Shares (or any OP Units which are
convertible, exercisable or redeemable, directly or indirectly, for Registrable
Shares); provided that, in such case, the Company shall be given written notice
stating the name and address of said transferee or assignee and identifying the
securities with respect to which such registration rights are being transferred
or assigned and the Company shall have received the written agreement of such
transferee or assignee to be bound by the terms of this Agreement.
(e) Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually taken together, shall
bear the signatures of all of the parties reflected hereon as the signatories.
(f) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(g) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. This Agreement may not be modified or amended other
than by an agreement in writing.
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(h) Paragraph Headings. The paragraph headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
[Signature page follows]
743441.2
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IN WITNESS WHEREOF, the parties executed and delivered this Agreement
on the date first above written.
MARK CENTERS TRUST
By: /s/ Joshua Kane
________________________________________
/s/ Ross Dworman
--------------------------------------------
/s/ Kenneth F. Bernstein
--------------------------------------------
RD PROPERTIES, L.P. II
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: General Partner
RD PROPERTIES, L.P. III
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: General Partner
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RD PROPERTIES, L.P. IV
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: General Partner
RD PROPERTIES, L.P. V
By: RD New York, LLC,
General Partner
By: /s/ Kenneth F. Bernstein
________________________________________
Name: Kenneth F. Bernstein
Title: Member
RD PROPERTIES L.P. VI
By: RD New York VI LLC,
General Partner
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: Member
RD CROSSROADS ASSOCIATES, L.P.
By: RD Crossroads, Inc.,
General Partner
By: /s/ Kenneth F. Bernstein
________________________________________
Name: Kenneth F. Bernstein
Title: Vice President
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RD SOUNDVIEW ASSOCIATES, L.P.
By: RD Soundview Associates Inc.,
General Partner
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: President
RD SMITHTOWN ASSOCIATES, L.P.
By: RD Smithtown Associates, Inc.,
General Partner
By: /s/ Kenneth F. Bernstein
________________________________________
Name: Kenneth F. Bernstein
Title: Vice President
RD BLOOMFIELD ASSOCIATES LIMITED
PARTNERSHIP II
By: RD Bloomfield, Inc.
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: President
743441.2
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HOMKOR COLONY, L.P.
By: HOMKOR COLUMBIA, LLC
By: /s/ James Wisc
________________________________________
G.O. ASSOCIATES LIMITED PARTNERSHIP
By: RD G.O. Properties, Inc.,
individually and as General Partner
of G.O. Associates Limited Partnership
By: /s/ Kenneth F. Bernstein
________________________________________
Name: Kenneth F. Bernstein
Title: Vice President
RD G.O. PROPERTIES, L.P.
By: RD Greenbelt, Inc., General Partner
By: /s/ Kenneth F. Bernstein
________________________________________
Name: Kenneth F. Bernstein
Title: President
COLUMBIA VGH INVESTORS
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: Managing Partner
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RD PROPERTIES L.P. VIA
By: RD New York VI LLC,
General Partner
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: Member
RD PROPERTIES L.P. VIB
By: RD New York VI LLC,
General Partner
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: Member
GREAT UNIVERSAL CAPITAL CORP.
By: /s/ Mark Krugman
________________________________________
Name: Mark Krugman
Title: Vice President
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RD MARLEY ASSOCIATES LIMITED PARTNERSHIP
By: RD Marley Partners
By: RD Marley, Inc.
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: President
/s/ Perry Kamerman
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/s/ Joel Braun
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/s/ Eric Newberg
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/s/ Robert Masters
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