CONTRIBUTION AGREEMENT
PARTNERSHIP INTERESTS IN
CUMBERLAND MALL ASSOCIATES
TO
DESIGNEES OF
PREIT ASSOCIATES, L.P.
THIS CONTRIBUTION AGREEMENT (this "Agreement") is made as of the 8th
day of October, 2004, by and among CUMBERLAND MALL MANAGEMENT, INC., a
Pennsylvania corporation ("GENERAL PARTNER"), PAN AMERICAN ASSOCIATES, a
Pennsylvania limited partnership ("PAN AMERICAN"), and CUMBERLAND MALL
INVESTMENT ASSOCIATES, a Pennsylvania limited partnership ("INVESTMENT
ASSOCIATES") (Pan American and Investment Associates being referred to
collectively as the "LIMITED PARTNERS" and, together with the General Partner,
being collectively referred to as the "CONTRIBUTORS," and, each, a
"CONTRIBUTOR"); PENNSYLVANIA REAL ESTATE INVESTMENT TRUST, an unincorporated
association in business trust form created under Pennsylvania law pursuant to a
Trust Agreement dated December 27, 1960, as last amended on November 14, 2003
("PREIT"); and PREIT ASSOCIATES, L.P., a Delaware limited partnership (the
"UPREIT").
BACKGROUND
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A. The Contributors own 100% of the partnership interests in Cumberland
Mall Associates, a New Jersey limited partnership (the "PARTNERSHIP") formed
pursuant to a Second Amended and Restated Agreement of Limited Partnership of
Cumberland Mall Associates dated January 26, 1998, as last amended
__________________ (the "PARTNERSHIP AGREEMENT"). General Partner owns 1% of
such interests, Pan American owns 51% of such interests, and Investment
Associates owns 48% of such interests.
B. The Partnership is the owner of a retail shopping center project in
Vineland, Cumberland County, New Jersey, containing approximately 929,000 square
feet of retail space, known as the Cumberland Mall (the "PROPERTY"). The General
Partner is the sole general partner of The Partnership, and the Limited Partners
are all of the limited partners of The Partnership. The Property consists of two
condominium units: Unit A and Unit B of a condominium known as Cumberland Mall
Retail Condominium (the "Condominium"), created pursuant to a Master Deed
recorded in Cumberland County in Deed Book 2638, Page 74, as amended. Unit A
includes approximately 81.73 acres of land upon which Cumberland Mall is situate
(other than the pad of the Boscov's store), plus all associated improvements
thereon other than those owned by tenants, as well as a 67% undivided interest
in Condominium common elements. Unit C includes the pad of the Boscov's store
containing approximately 4.6 acres of land, plus all associated improvements
thereon other than those owned by tenants, as well as a 21% undivided interest
in Condominium common elements. The remaining Units of the Condominium,
consisting of Units B-1 and B-2 and comprising approximately 11.2 acres of land,
are owned by an entity affiliated with BJ's, and are utilized for a BJ's
Wholesale Club.
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C. The UPREIT has been formed pursuant to an Agreement of Limited
Partnership of PREIT Associates, L.P. dated as of June 30, 1997, as amended and
restated by a First Amended and Restated Agreement of Limited Partnership dated
September 30, 1997 and as last amended on November 17, 2003 (as the same may be
amended from time to time in accordance with the provisions thereof, the "UPREIT
PARTNERSHIP AGREEMENT").
D. The Property is subject to existing secured indebtedness, consisting
of (i) a first mortgage loan (the "FIRST LOAN") in favor of Greenwich Capital
Financial Products, Inc. ("FIRST LENDER") (the first mortgage being hereinafter
referred to as the "FIRST MORTGAGE" and the loan documents relating to the First
Loan being collectively referred to as the "FIRST LOAN DOCUMENTS"), having an
approximate current balance of $44.2 Million, and (ii) a second mortgage loan
(the "SECOND LOAN") in favor of Enterprise Zone Development Corporation of
Vineland and Millville ("SECOND LENDER") (the second mortgage being hereinafter
referred to as the "SECOND MORTGAGE" and the loan documents relating to the
Second Loan being collectively referred to as the "SECOND LOAN DOCUMENTS"),
having an approximate current balance of $4.1 Million.
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E. Subject to the terms and conditions of this Agreement, the parties
intend that the Contributors, in exchange for Class A limited partner interests
in the UPREIT ("UPREIT UNITS") plus certain cash consideration, will contribute
their partnership interests in the Partnership to two (2) Delaware limited
liability companies to be formed and which will be solely owned by the UPREIT
(one such limited liability company, being hereinafter referred to as "NEW
GENERAL PARTNER," to acquire the interest of the General Partner, and the other,
being hereinafter referred to as "NEW LIMITED PARTNER," to acquire the interests
of the Limited Partners, such limited liability companies being hereinafter
collectively referred to as the "NEW PARTNERS"); and that thereupon the
Partnership Agreement of the Partnership will be amended. The interests of
Contributors in the Partnership to be contributed to the UPREIT are herein
referred to as the "TRANSFERRED INTERESTS".
NOW, THEREFORE, in consideration of the foregoing and mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
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SECTION 1. CONTRIBUTIONS.
1.1 Contributions at Closing. Subject to the terms and conditions of
this Agreement, at the Closing (as defined herein), the Contributors shall
contribute to the New Partners, and the New Partners shall acquire from such
Contributors, free and clear of all liens, claims and encumbrances of any type
or nature, the Transferred Interests and all benefits and advantages to be
derived therefrom, including, without limitation, all right, title and interest
associated with the Transferred Interests in and to (i) the capital accounts of
such Contributors, (ii) distributions by the Partnership, and (iii) allocable
shares with respect to profits and losses of the Partnership.
1.2 Alternative General Partner Entity. As set forth herein, the
Property shall, at Closing, remain subject to the First Mortgage and the Second
Mortgage, and in such connection the consent of the First Lender and Second
Lender will be required for, among other things, the transfer of the interest of
the General Partner to the New General Partner as contemplated herein. In the
event the First Lender requires that the interest of the General Partner be held
by an entity which is not a limited liability company, and if such requirement
is approved by the UPREIT as herein set forth, then the contribution of the
interest of the General Partner shall be made to another form of entity which is
owned by the UPREIT as is designated for such purpose, and such alternative
entity shall be known as the New General Partner for all purposes of this
Agreement.
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SECTION 2. CONSIDERATION.
2.1 Agreed Consideration. The aggregate consideration to be paid for
the contribution of the Transferred Interests, subject to adjustments and
apportionments as herein set forth, shall be known as the "TRANSFER
CONSIDERATION." The Transfer Consideration shall be equal to FIFTY EIGHT MILLION
FOUR HUNDRED THIRTY NINE THOUSAND TWO HUNDRED THIRTY SIX DOLLARS ($58,439,236).
The Transfer Consideration shall be payable as follows:
(a) Deposit. Within five (5) business days following execution of
this Agreement, the UPREIT shall post a deposit ("DEPOSIT") of One Hundred Fifty
Thousand Dollars ($150,000) with First American Title Insurance Company (the
"TITLE COMPANY"), or another escrow agent mutually approved by the UPREIT and
the Contributors (in either case, the "ESCROW AGENT"), to be held in escrow at
interest pending Closing or earlier termination of this Agreement. In the event
(i) the UPREIT does not terminate this Agreement as a result of its due
diligence investigations as set forth in Section 7.2(a)(i) herein, and (ii) the
UPREIT shall default in its obligations to proceed to Closing hereunder, then
the Deposit (plus interest earned thereon, if in the form of cash) shall be
forfeited and paid to the Contributors as agreed-upon liquidated damages, in
lieu of all other damages, rights or remedies of Contributors, and thereupon
this Agreement shall be terminated without liability of any party except for
such liabilities as may survive such termination by the express provisions of
this Agreement. In the event Contributors shall default under this Agreement and
this Agreement is terminated as a result, the Deposit (plus any interest earned
thereon), shall be returned to the UPREIT and thereupon neither party shall have
further liability hereunder except for such liabilities as may survive such
termination by the express terms of this Agreement, provided that the UPREIT
shall have such other rights, if any, as are specified in Section 11 below. If
Closing occurs hereunder, the Deposit, plus any interest earned thereon, shall
be paid to Contributors and credited against the Transfer Consideration.
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(b) Credit for Debt. At Closing, and by reason of the Property
remaining subject to the First Mortgage and the Second Mortgage, the UPREIT
shall receive a credit against the Transfer Consideration for the aggregate
outstanding aggregate principal indebtedness secured by the First Mortgage and
the Second Mortgage. It is understood that the parties have applied to the First
Lender and the Second Lender for approval to allow the First Mortgage and the
Second Mortgage to remain in place following Closing.
(c) Balance. Subject to the further adjustments and apportionments
set forth in this Agreement, the balance of the Transfer Consideration shall be
payable to Contributors at Closing by the issuance of UPREIT Units and/or cash,
computed as follows:
(i) Cash Portion. At the option of the Contributors, to be
exercised by written notice to the UPREIT not less than ten (10) days prior to
Closing, up to $1,250,000 of the Transfer Consideration shall be paid at Closing
by wire transfer of federal funds to an account designated for such purpose by
Contributors.
(ii) Unit Portion. The balance of the Transfer Consideration,
after taking into account all adjustments, apportionments, credit for the First
Mortgage and Second Mortgage and any cash payable pursuant to subclause (i)
above, shall be referred to as the "CUMBERLAND UNIT VALUE," and shall be payable
by the issuance to each of the transferring Contributors the number of UPREIT
Units computed as set forth in Section 2.2 below.
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2.2 Unit Calculation. The Number of UPREIT Units to be issued to a
Contributor shall be equal to the product of (A) the percentage interest in the
Partnership represented by the Transferred Interest of such Contributor (i.e.,
the aggregate percentage of total interests in the Partnership represented by
such Transferred Interest), and (B) the quotient obtained by dividing the
Cumberland Unit Value by the average closing price of a share of the publicly
traded beneficial interests of PREIT during the ten (10) trading day period
immediately preceding Closing (the "AVERAGE CLOSING PRICE"); provided that the
number of UPREIT Units so derived shall be rounded to the nearest integer (0.5
rounded down). Such issuance shall be further subject to the following
provisions:
(a) At the option of a Contributor which is a partnership or
limited partnership (to be exercised by written notice to the UPREIT not less
than twenty (20) days prior to Closing), in lieu of the UPREIT Units to be
issued to such Contributor, the UPREIT shall issue directly to each of the
constituent partners of such Contributor, such number of UPREIT Units as is
calculated by multiplying (i) the total number of UPREIT Units to which the
Contributor is entitled, by (ii) the percentage interest of the constituent
partner in the Contributor in question; all as specified in reasonable detail in
such written notice from Contributor to the UPREIT. Any such notice may be
relied upon by the UPREIT without the necessity for further inquiry and shall be
irrevocably binding upon such Contributor and all of its constituent partners.
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(b) Notwithstanding anything to the contrary set forth herein, the
UPREIT shall have the right and option to deliver to any constituent partner of
a Contributor who is not an "accredited investor," as such term is defined under
Regulation D promulgated pursuant to the Securities Act of 1933, as amended (the
"ACT"), in lieu of any UPREIT Units which would otherwise be issuable to such
constituent partner pursuant to the foregoing provisions of this Agreement, an
amount of cash equal to the product of (i) the number of UPREIT Units otherwise
issuable to such partner and (ii) the Average Closing Price.
(c) If, after the date hereof, there shall occur any
recapitalization, unit division, reverse division, unit re-issuance or any other
transaction involving the UPREIT or PREIT whereby a Class A Unit of the UPREIT
(as it exists on the date hereof) shall be reconstituted as a different number
of Class A Units, and/or as a specified number of units having a different class
or designation (in each case subject to the necessary requirements specified in
the UPREIT Partnership Agreement), or if there shall occur any merger,
consolidation or other transaction involving the UPREIT and/or PREIT whereby
specified interests or units are substituted for a Class A Unit (or for the
reconstituted UPREIT Units determined as aforesaid), then for purposes of
computing the number of UPREIT Units to be issued under this Agreement, such
reconstituted or substituted number of Class A UPREIT Units, and/or specified
other UPREIT Units or interests, shall be substituted for each Class A Unit
otherwise applicable hereunder. Any such substitution shall be accomplished in a
manner that neither increases nor decreases the value of the UPREIT Units to be
received by the Contributors as compared to other holders of Class A Units under
the UPREIT Partnership Agreement.
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SECTION 3. CERTAIN DEFINITIONS; PROPERTY INCLUSIONS.
3.1 The following definitions apply to this Agreement:
(a) "AFFILIATE" means, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with such specified
Person.
(b) "AUTHORIZATIONS" means all licenses, permits, approvals,
consents and authorizations required by any governmental or quasi-governmental
agency, body, department, commission, board, bureau, instrumentality, officer,
or other Person or entity with respect to the business, assets or affairs of a
party.
(c) "CONTRACTS" means any contractual obligations, commitments,
undertaking or arrangements to which a party is bound, whether oral or in
writing, other than occupancy leases of the Property, including without
limitation (1) Contracts with service providers relating to the assets of the
Property, and (2) Contracts with municipal or governmental authorities.
(d) "LAWS" means any applicable governmental laws, statutes,
ordinances, resolutions, rules, codes, regulations, orders or determinations of
any federal, state, county, municipal or other government or governmental or
quasi-governmental agency, department, commission, board, bureau, officer or
instrumentality, relating to a party, its partners, assets, rights and
obligations.
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(e) "LEASES" means all leases, licenses and occupancy agreements
relating to the Property.
(f) "PERSON" means any individual, partnership, limited
partnership, trust, estate, incorporated or unincorporated association, limited
liability company, limited liability partnership, or other entity.
(g) "TAXES" means any income, franchise, sales, use, social
security, unemployment compensation or other taxes, imposts or impositions
payable by an entity to any federal, state or local collecting authority, other
than ad valorem real estate taxes.
3.2 Property Inclusions. It is understood that the Property includes,
and shall at Closing include, without limitation, (i) all buildings and other
all other improvements constituting part of or located on the land of, the
Cumberland Mall, including without limitation installed equipment, fixtures,
fittings and machinery (other than equipment, fixtures, fittings and machinery
owned by tenants), and all easements and other rights associated with the
underlying land and improvements, (ii) furnishings, furniture, equipment,
supplies, and other personal property which are owned by the Partnership and are
used in connection with the operation of the Cumberland Mall, (iii) all written
leases with tenants, occupancy agreements and license agreements, (iv) all
service, maintenance and other Contracts pertaining to the operation of the
Cumberland Mall, which are to remain in effect except as otherwise provided
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herein; and (v) all right, title and interest of the Partnership in plans and
specifications, development approvals and rights, utility allocations, licenses,
permits, tradenames, warranties, escrow accounts, business records, unpaid
awards for taking by condemnation or any damage (subject to the further
provisions of this Agreement as to condemnation awards), and other intangibles
relating to the Cumberland Mall. However, where the term "Property" is used with
respect to particular representations or other operative provisions of this
Agreement, and where the context clearly refers to one or more, but less than
all, includable categories of the Property, such restricted context shall be
applicable to the interpretation of the representation or provision in question.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS.
4.1 As to the Contributors. For purposes hereof, the term "CONTRIBUTOR
ENTITY" means the legal entity (i.e., limited partnership or corporation) which
comprises a Contributor. Each Contributor severally, but not jointly, hereby
represents and warrants to PREIT and the UPREIT as follows:
(a) Organization. Each such Contributor Entity is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization and has all power to carry on its business as presently conducted,
to own its interest in the Partnership and to exercise all rights attributable
to such interest. It is duly qualified to do business as a foreign entity and is
in good standing under the laws of each jurisdiction in which its ownership of
or other interest in assets or properties or the nature of its activities
requires such qualification except where the failure to be so qualified would
not have a material adverse effect on the condition (financial or otherwise),
assets, results of operations or business of such Contributor Entity (a
"MATERIAL ADVERSE EFFECT").
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(b) Power and Authority. It has all requisite power and authority
to execute, deliver and perform its obligations under this Agreement and under
the other agreements and documents required to be delivered by it prior to or at
the Closing (collectively with this Agreement, and together with all documents
and agreements required to be delivered by any of the Contributors, the
"CONTRIBUTOR TRANSACTION DOCUMENTS"). The execution, delivery and performance by
it of the Contributor Transaction Documents has been (or, as to documents to be
delivered at a future date, will be at such date of delivery) duly authorized by
all necessary action on the part of such Contributor Entity, and at the time of
delivery constitutes a legal, valid and binding obligation of such Contributor
enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally or by general equitable
principles.
(c) No Conflicts. The execution and delivery by it of this
Agreement does not, and the performance by it of all of the other Contributor
Transaction Documents will not (with or without the passage of time or the
giving of notice), directly or indirectly:
(i) contravene, violate or conflict with (A) its articles of
incorporation, bylaws, partnership agreement or other organizational documents,
as the case may be, or (B) any Law applicable to such Contributor, or by or to
which any assets or properties of such Contributor is bound or subject;
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(ii) violate or conflict with, result in a breach of,
constitute a default or otherwise cause any loss of benefit under, or give to
others any rights (including rights of termination, amendment, foreclosure,
cancellation or acceleration) in or with respect to, any Authorization or
Contract to which such Contributor is a party or by which such Contributor or
any assets or properties thereof is bound or affected; or
(iii) result in, require or permit the creation or imposition
of any lien or encumbrance upon or with respect to such Contributor or the
Transferred Interests.
(d) Authorizations. The execution and delivery by it of this
Agreement does not, and the execution and delivery by such Contributor of the
other Contributor Transaction Documents, and the performance by such Contributor
of this Agreement and all of the Contributor Transaction Documents will not,
require such Contributor to obtain any authorization of, or to make any filing,
registration or declaration with or notification to, any court, government or
governmental agency or instrumentality (federal, state, local or foreign) or to
obtain the consent, waiver or approval of, or give any notice to, any other
Person, except for the required consents of the First Lender and the Second
Lender as set forth herein.
(e) Proceedings. There are no claims, actions, suits, proceedings
or investigations pending or, to the knowledge of such Contributor, threatened
or contemplated, involving or affecting it or any of its assets or properties or
to its knowledge any of its directors, officers, partners, trustees or
shareholders, that question any of the transactions contemplated by this
Agreement or other Contributor Transaction Documents, or which, if adversely
determined, would have a Material Adverse Effect or could materially and
adversely affect such Contributor's ability to enter into or perform its
obligations under this Agreement.
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(f) Orders. No officer, director, partner, or, to the knowledge of
such Contributor, employee or shareholder of such Contributor is subject to any
order that prohibits such officer, director, partner, shareholder or employee
from engaging in or continuing any conduct, activity or practice relating to its
business with respect to the Partnership or the Property.
(g) The Transferred Interests.
(i) Such Contributor owns, beneficially and of record, the
Transferred Interest as recited in Background Paragraph A above, free and clear
of all liens, pledges and encumbrances of any type or nature.
(ii) Except as set forth in the Existing Partnership Agreement,
Contributor has granted no rights, subscriptions, warrants, options, rights of
first refusal, conversion rights or agreements of any kind outstanding to
purchase or to otherwise acquire any partnership interest or other securities or
obligations of any kind convertible into any partnership interest or other
securities or any participation interests of any kind in the Partnership or the
Property.
(h) Brokers. No Person acting on behalf of such Contributor or any
Affiliate of Contributor is or will be entitled to any brokers' or finders' fee
or any other commission or similar fee, directly or indirectly, from any of such
parties in connection with any of the transactions contemplated by this
Agreement. In such connection, however, the parties acknowledge that a brokerage
commission of One Percent (1%) of the Transfer Consideration will be due by
reason of the Closing under this Agreement to Preit-▇▇▇▇▇, Inc. or an affiliated
entity, which brokerage commission is to be paid by the Contributors, or which
the Contributors shall cause the Partnership to pay at Closing.
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(i) Accurate Disclosure. All documents and other papers delivered
by or on behalf of such Contributor in connection with the transactions
contemplated by this Agreement are accurate and complete in all material
respects.
(j) Investment Representations.
(i) Each Contributor acknowledges that the UPREIT Units to be
issued pursuant to Section 2 hereof will not be registered under the 1933 Act on
the grounds that the issuance of such units is exempt from registration pursuant
to Section 4(2) of the 1933 Act and/or Regulation D promulgated under the 1933
Act, and that the reliance of the UPREIT on such exemptions is predicated in
part on the Contributors' representations, warranties and acknowledgements set
forth in this section.
(ii) Each Contributor is an accredited investor as defined in
Regulation D promulgated under the ▇▇▇▇ ▇▇▇. The UPREIT Units issued in
accordance with this Agreement will be acquired by such Contributor for its own
account, not as a nominee or agent for any other Person, solely for investment
purposes, and without a view to resale or other distribution within the meaning
of the 1933 Act, and the rules and regulations thereunder, and such Contributor
will not distribute any of such units in violation of the 1933 Act or any
applicable state securities law.
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(iii) Each Contributor (1) acknowledges that there is not
currently, and may never be, a public market for the UPREIT Units and that the
UPREIT is under no obligation to register, and has no current intention of
registering, any of such UPREIT Units under the 1933 Act, (2) is aware that Rule
144 under the 1933 Act is not available for use by any Contributor for resale of
the UPREIT Units, (3) acknowledges that any common shares of beneficial interest
in PREIT ("SHARES") that a Contributor may receive upon redemption of UPREIT
Units, when issued, will have to be held indefinitely by it unless such Shares
are subsequently registered under the 1933 Act or an exemption from registration
is available, and (4) is aware that any sales of such Shares made pursuant to
the provisions of Rule 144 may be made only in limited amounts and in accordance
with the terms and conditions set forth therein and that in such cases where
Rule 144 is not applicable, compliance with some other registration exemption
will be required.
(iv) Each Contributor is well versed in financial matters, has
had dealings over the years in securities, including "restricted securities,"
and has had sufficient experience so as to be fully capable of understanding the
type of investment being made in the UPREIT Units and the risks involved in
connection therewith.
(v) Each Contributor has examined the UPREIT Partnership
Agreement, and is prepared to accept and abide by the terms thereof. Each
Contributor acknowledges that the UPREIT Partnership Agreement restricts the
assignment, sale or transfer of the UPREIT Units, and that it must continue to
bear the economic risks of the investment in such units for an indefinite
period.
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(vi) Each Contributor has received and reviewed to the extent
deemed necessary or desirable all PREIT Reports (as defined in Section 5.5
hereof), and has consulted such of its own attorney, accountant, tax adviser and
investment counselor as it determined to be necessary or desirable.
(vii) Each Contributor has been given an adequate opportunity
to ask questions of and receive answers from officers of PREIT and the UPREIT
with respect to PREIT, the UPREIT, the UPREIT Units, the UPREIT Partnership
Agreement and the PREIT Reports. However, in considering whether to enter into
this Agreement, consummate the transactions contemplated hereby and acquire the
UPREIT Units, such Contributor has not relied upon any representations made by,
or other information (whether oral or written) furnished by or on behalf of,
PREIT or the UPREIT other than as set forth in this Agreement, the UPREIT
Partnership Agreement, and the PREIT Reports.
(viii) Each Contributor acknowledges that the redemption of any
of the UPREIT Units may cause such Contributor to incur taxable income or gain.
(k) FIRPTA. Contributor is not a "foreign person" within the
meaning of Section 1445(f) of the Code or a "foreign partner" within the meaning
of Section 1446 of the Code.
Each Contributor shall have responsibility only for its own representations and
warranties as set forth in this Section 4.1, and shall not be responsible for
any breach or failure of a representation or warranty made by another
Contributor pursuant to this Section 4.1.
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4.2 As to the Partnership and Property. The General Partner, as general
partner of the Partnership, hereby represents and warrants to PREIT and the
UPREIT as follows):
(a) Organization. The Partnership is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
New Jersey and has all partnership power to carry on its business as presently
conducted, to own and lease the assets and properties which it owns and leases
and to perform all its obligations under each agreement and instrument to which
it is a party or by which it is bound. The Partnership is duly qualified to do
business as a foreign partnership and is in good standing under the laws of each
jurisdiction in which its ownership or leasing of assets or properties or the
nature of their activities requires such qualification except where the failure
to be so qualified would not have a Material Adverse Effect on the condition
(financial or otherwise), assets, results of operations or business of the
Partnership.
(b) Financial Statements. The financial statements for the
Partnership for the years 2001, 2002 and 2003 and for the 2004 period ending
June 30, 2004, which are attached hereto as Schedule 4.2(b), are correct and
complete in all material respects, have been prepared in accordance with
generally accepted accounting principles ("GAAP"), and present accurately the
results of the operations of the Partnership for the periods indicated. Since
the date of the last financial statement included on said Schedule, no material
adverse change in the financial condition of the Partnership has occurred.
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(c) Undisclosed Liabilities.
(i) At Closing, there shall be no liabilities of the
Partnership of any nature (whether absolute, accrued, contingent, liquidated,
unliquidated or otherwise) except liabilities with respect to the Property to
remain or to be assumed or taken subject to by the Partnership in accordance
with the express terms of this Agreement.
(d) Taxes.
(i) All Taxes due from or required to be remitted by the
Partnership with respect to taxable periods ending on or prior to, and the
portion of any interim period up to, the Closing Date have been fully and timely
paid or, to the extent not yet due or payable, shall be adequately provided for
by an actual cash reserve which shall be available at Closing as an asset of the
Partnership.
(ii) All federal, state, local and foreign returns and reports
relating to Taxes, or extensions relating thereto, required to be filed by or
with respect to the Partnership or the Property have been or will be timely and
properly filed, and all such returns and reports are and will be correct and
complete. In such connection, the General Partner shall fully cooperate with the
UPREIT, in filing, signing and taking other necessary action at or after
Closing, to implement the filing of final tax returns for the Partnership with
all federal, state and/or local governmental bodies with whom such returns are
required to be filed with respect to the Partnership or the Property (subject to
apportionment of any items which, pursuant to the terms of this Agreement, are
to be apportioned between Contributors and the UPREIT).
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(iii) No issues have been raised with the Partnership (and are
currently pending) by the Internal Revenue Service or any other taxing authority
in connection with any of the returns and reports referred to in subsection (ii)
above and no waivers of statutes of limitations have been given or requested
with respect to any such returns and reports or with respect to any Taxes. All
deficiencies asserted or assessments made as a result of any previous
examinations with respect to Taxes have been fully paid, and there are no other
unpaid deficiencies asserted or assessments made by any taxing authority against
the Partnership or the Property.
(e) Books and Records. To the knowledge of the General Partner, the
books and records of the Partnership, including financial records and books of
account, are complete and accurate in all material respects and have been
maintained in accordance with sound business practices. For a period of three
(3) years following Closing, the General Partner shall cause such books and
records of the Partnership to be made available to the UPREIT, and shall fully
cooperate with the UPREIT and cause the managing agent of the Partnership to
fully cooperate with the UPREIT, in order to enable the UPREIT and/or its
designated accountants or other representatives, to make such inquiries, audits,
investigations and determinations of the financial history of the Partnership
and Property as the UPREIT or PREIT may require; and such three (3) year period
shall apply notwithstanding any other limitation set forth in this Agreement.
(f) Condemnation. To the knowledge of the General Partner, no
condemnation proceeding is pending or threatened against or relating to the
Property, except as set forth on Schedule 4.2 (f) hereto regarding the
relocation of ▇▇▇▇▇▇ Road. Said Schedule identifies the status of such
proceedings and any awards relating thereto.
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(g) Environmental Matters. Except as disclosed in the existing
environmental reports and studies which have been delivered to the UPREIT, to
the knowledge of the General Partner: (1) there are no underground storage tanks
at the Property, and (b) the Property does not contain nor is it impaired by any
hazardous substances or materials in violation of any federal, state or local
laws, codes or ordinances relating to environmental matters.
(h) Employees. The Partnership is not a party to nor bound by any
collective bargaining agreement covering employees assigned to the Property, nor
is the Partnership bound by the terms of or required to make payment to any
employee pension plan under any collective bargaining agreement covering such
employees. All employees performing services with respect to the Property are
employees of the Partnership's managing agent.
(i) Litigation. No litigation, proceeding, or action has been
served upon the Partnership and is pending, and to the General Partner's
knowledge (based upon the certificate of PREIT-▇▇▇▇▇, Inc., the manager of the
Property), no such litigation, proceeding or action has been threatened, which
relates to the Property, other than as disclosed on Schedule 4.2(i) hereto
attached hereto.
(j) Loans. The Partnership is in material compliance with the First
Loan Documents and the Second Loan Documents and, to the knowledge of the
General Partner, no event has occurred which, with the passage of time and/or
giving of notice, would result in a default under such documents. With respect
to the reserves which are referenced in the First Loan Documents:
21
(i) The repairs referred to in Schedule 1 of the Loan Agreement
between the Partnership and the First Lender have been completed to the
satisfaction of the First Lender, and any balance in the reserve account
attributable thereto has been transferred to the capital reserve account.
(ii) The repairs required to be made to the Value City roof as
referred to in said Loan Agreement have been completed to the satisfaction of
the First Lender, and any balance in the reserve account attributable thereto
has been transferred to the capital reserve account.
(iii) The approximate balance of the remaining reserve
accounts, and the current required monthly payments, are as follows (as of the
July, 2004 payment):
(A) Tax and Insurance Escrow Account: $1,128,800 in
account, $111,739.08 monthly payment.
(B) Capital Expense Reserve Account: $180,600 in account,
$6,280 monthly payment.
(C) Lease Rollover Reserve Account: $847,100 in account,
$24,167 monthly payment.
22
(D) Subordinate Debt Service Reserve Account: $214,000 in
account, $0 monthly payment.
(E) Other: None
(iv) The Partnership has received no notice from the First
Lender of any required increase in the amount of monthly reserves to be paid to
the foregoing accounts.
(k) Violations; Assessments; Governmental Agreements. The Property
is not (1) subject to any outstanding notices of violations issued by any
governmental entity, (2) subject to any unpaid assessments for public
improvements, nor has the Partnership received notice of any such proposed
assessment, or (3) the subject of any outstanding commitment or agreement with
any municipal or governmental authority wherein any work remains to be performed
or payment remains to be made.
(l) Utilities. The General Partner is unaware of any threatened or
proposed curtailment or limitation on the availability of all utility services
for the proper and efficient conduct of business at the Property.
(m) Tax Assessments. Except as set forth on Schedule 4.2(m) hereto,
there are no current or outstanding real estate tax appeals pending with respect
to the Property. If any such appeals are pending, said Schedule indicates the
manner in which the parties have agreed to the post-Closing handling of such
appeals, the costs thereof and any refunds which may be received.
23
(n) Brokerage. There shall at Closing be no brokerage commissions
payable with respect to any Leases (including, without limitation, the Leases or
proposed Leases with Starbucks, Cold Store Creamery, Quizno's and Sprint). The
General Partner has no knowledge that any brokerage commissions are payable with
respect to the renewal of any Leases which may be effectuated after Closing.
(o) Leases. The Rent Roll of Schedule 4.2(o) hereto contains a
schedule of all presently existing Leases of the Property, the commencement and
expiration dates and current minimum rent, future stepped or fixed rent
increases, tax and common area contributions, and the amount of any security
deposit (if any) paid by the tenant. True, correct and complete copies of the
Leases, and all amendments and supplements thereto, have heretofore been made
available and/or delivered to the UPREIT for review. Except as set forth on said
Schedule, each of the Leases is in full force and effect and the Partnership has
not received notice which is still outstanding from any tenant under a Lease (a)
that the Partnership has defaulted in performing any of its material obligations
under such Lease or (b) that such tenant is entitled to any reduction in, refund
of or counterclaim or offset against, or is otherwise disputing, any rents or
other sums paid, payable or to become payable by such tenant thereunder or is
entitled to cancel or terminate such Lease to be released of any of its material
obligations thereunder. The Partnership has not collected rent more than thirty
(30) days in advance of when the same is due for any Lease. The Partnership has
completed all construction and other work required to be performed under the
Lease (other than repairs, replacements or maintenance, not currently required,
which may be the obligation of the landlord as expressly set forth in a Lease).
There are no currently pending challenges by any tenant to the accuracy or
validity of any charges to such tenant for common area maintenance, taxes or
other items of rent or additional rent under such tenant's Lease. In making the
representations and warranties set forth in this Section 4.2(o), the General
Partner shall be entitled to rely solely upon the certificate of PREIT-▇▇▇▇▇,
Inc., the manager of the Property, except to the extent that the General Partner
has actual knowledge that any such representation or warranty is not true and
correct.
24
(p) Personal Property. All personal property utilized by the
Partnership is owned free and clear of all liens and encumbrances, subject to
any lien or security interest created pursuant to the First Loan Documents and
the Second Loan Documents.
(q) Contracts. Except for the Contracts listed on Schedule 4.2 (q)
hereto, there are no management, service, supply, maintenance, employment or
other contracts in effect with respect to the Property, written or oral, and the
Partnership and the other parties to such Contracts have performed all of their
obligations under each of the Contracts in all material respects. In making the
representations and warranties set forth in this Section 4.2(q), the General
Partner shall be entitled to rely solely upon the certificate of PREIT-▇▇▇▇▇,
Inc., the manager of the Property, except to the extent that the General Partner
has actual knowledge that any such representation or warranty is not true and
correct.
25
SECTION 5. REPRESENTATIONS AND WARRANTIES REGARDING PREIT AND THE UPREIT.
PREIT and the UPREIT hereby represent and warrant to the Contributors
as follows; provided that each of PREIT and the UPREIT make these
representations solely as to its separate business, affairs or status and shall
not extend to matters relating to the business, affairs or status of the other:
5.1 Organization.
(a) PREIT is an unincorporated association in business trust form
duly organized and validly existing under the laws of the Commonwealth of
Pennsylvania. PREIT has all necessary trust power to carry on its business as
presently conducted, to own and lease the assets and properties that it owns and
leases and to perform all its obligations under each agreement and instrument to
which it is a party or by which it is bound.
(b) The UPREIT is a limited partnership duly formed, validly
existing and in good standing under the laws of the State of Delaware and has
all necessary partnership power to carry on its business as presently conducted,
to own and lease the assets and properties that it owns and leases and to
perform all its obligations under each agreement and instrument to which it is a
party or by which it is bound.
5.2 Power and Authority. Each of PREIT and the UPREIT has all requisite
trust or partnership power to execute, deliver and perform its obligations under
this Agreement and under all other agreements and documents required to be
delivered by it prior to or at the Closing (collectively, the "PREIT TRANSACTION
26
DOCUMENTS"). Subject to obtaining the approval of the Board of Trustees of
PREIT, the execution, delivery and performance by PREIT and the UPREIT of this
Agreement and the other Preit Transaction Documents have been duly authorized by
all necessary corporate or partnership action. Subject to obtaining the approval
of the Board of Trustees of PREIT, this Agreement has been duly and validly
executed and delivered by PREIT and the UPREIT and constitutes the legal, valid
and binding obligation of PREIT and the UPREIT enforceable against each of them
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors
rights generally or by general equitable principles. When executed and delivered
as contemplated herein, each of the other Preit Transaction Documents shall,
assuming due authorization, execution and delivery thereof by the other parties
thereto, constitute the legal, valid and binding obligation of each of PREIT and
the UPREIT that is a party thereto enforceable against it in accordance with its
terms except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors rights generally or by
general equitable principles.
5.3 No Conflicts.
(a) The execution and delivery by PREIT and the UPREIT of this
Agreement do not, and the execution and delivery by PREIT and the UPREIT of the
other Preit Transaction Documents and the performance by PREIT and the UPREIT of
all of the Preit Transaction Documents will not (in each case, with or without
the passage of time or the giving of notice), directly or indirectly:
27
(i) contravene, violate or conflict with (A) the trust or
partnership agreement (or other organizational documents) of PREIT or the UPREIT
or (B) any Law applicable to PREIT or the UPREIT, or by or to which any assets
or properties of PREIT or the UPREIT is bound or subject; or
(ii) violate or conflict with, result in a breach of,
constitute a default or otherwise cause any loss of benefit or give to others
any rights (including rights of termination, amendment, foreclosure,
cancellation or acceleration) in or with respect to any material Authorization
or material Contract to which PREIT or the UPREIT is a party or by which either
PREIT or the UPREIT is bound or affected; or
(iii) result in, require or permit the creation or imposition
of any material encumbrance upon or with respect to either PREIT or the UPREIT
or any of their respective assets or properties.
(b) Except for filings with the Securities and Exchange Commission
and the New York Stock Exchange, the execution and delivery by PREIT and the
UPREIT of this Agreement do not, and the execution and delivery by PREIT and the
UPREIT of the other Preit Transaction Documents and the performance by PREIT and
the UPREIT of all of the Preit Transaction Documents will not, require PREIT or
the UPREIT to obtain any material Authorization of or make any material filing,
registration or declaration with or notification to any court, government or
governmental agency or instrumentality (federal, state, local or foreign) or to
obtain the material consent, waiver or approval of, or give any material notice
to, any Person.
28
(c) Except as disclosed in filings with the Securities and Exchange
Commission made by PREIT, there are no actions, proceedings or investigations
against or involving PREIT or the UPREIT pending or, to the best knowledge of
PREIT, threatened, that question any of the transactions contemplated by this
Agreement or the validity of any of the Preit Transaction Documents or which, if
adversely determined, could have a material adverse effect on the consolidated
financial condition, assets, business or results of Operations of PREIT or could
materially and adversely affect PREIT's or the UPREIT's ability to enter into or
perform its obligations under the Preit Transaction Documents.
5.4 Capitalization.
(a) As of August 2, 2004, the outstanding beneficial interests in
PREIT consist of 36,052,154 common shares, and the outstanding partnership
interests in the UPREIT as of said date are as described on Schedule 5.4 hereto.
(b) All UPREIT Units to be issued and delivered to the Contributors
pursuant to this Agreement will be, at the time of issuance and delivery in
accordance with the terms of this Agreement, duly authorized and validly issued
by the UPREIT. Assuming the accuracy of the representations and warranties of
the Contributors set forth herein, such issuance will be exempt from
registration under the 1933 Act as an offering described in Section 4(2) of such
Act and/or pursuant to Regulation D promulgated thereunder.
29
5.5 PREIT Reports. PREIT has delivered to the Contributors copies of
PREIT's (a) Proxy Statement for its 2004 Annual Meeting, (b) Annual Report on
Form 10-K for the fiscal year ending December 31, 2003, (c) Quarterly Reports on
Form 10-Q for the quarters ended March 31 and June 30, 2004, and (d) Current
Reports on Form 8-K filed since December 31, 2003, all of which have been filed
by PREIT with the Securities and Exchange Commission (the "PREIT REPORTS"). The
Contributors acknowledge that delivery of the foregoing is effective by reason
of the filing of the aforesaid materials with the publicly-accessible ▇▇▇▇▇
database of the Securities and Exchange Commission. To the knowledge of PREIT
and the UPREIT, in all material respects, the audited consolidated financial
statements and unaudited interim financial statements of PREIT included in such
reports have been prepared in accordance with GAAP consistently applied (except
as may be indicated in the notes thereto) and fairly present the consolidated
financial condition and results of operations of PREIT as at the dates thereof
and for the periods then ended, subject, in the case of the unaudited interim
financial statements, to normal year-end adjustments and any other adjustments
described therein. To the knowledge of PREIT and the UPREIT, the PREIT Reports
do not contain any untrue statements of a material fact or omit to state a
material fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading at the time the
filing was made.
5.6 Litigation. Except as disclosed in filings with the Securities and
Exchange Commission, there are no claims, actions, suits, proceedings
(arbitration or otherwise) or, to the best knowledge of PREIT, investigations
involving or affecting PREIT or any of its subsidiaries or any of their assets
or properties or any of their trustees, directors, officers, partners or
shareholders in their capacities as such, before or by any court, government or
governmental agency or instrumentality (federal, state, local or foreign) or
before any arbitrator of any kind, in each case of a nature that is required to
be disclosed in the PREIT Reports.
30
5.7 Material Adverse Change. Except as disclosed in filings with the
Securities and Exchange Commission, since December 31, 2003 and through the date
of this Agreement, there has not been any material adverse change in the
condition (financial or otherwise), assets, results of operations or business of
PREIT on a consolidated basis.
5.8 Brokers. No Person acting on behalf of PREIT or the UPREIT is or
will be entitled to any brokers' or finders' fee or any other commission or
similar fee, directly or indirectly, from any of such parties in connection with
the issuance of UPREIT Units contemplated by this Agreement.
SECTION 6. CERTAIN COVENANTS AND AGREEMENTS
6.1 Conduct of Business
(a) Pending Closing, the General Partner shall cause the
Partnership to:
(i) pay and discharge in the ordinary course of business all
payments due under the First Loan Documents and the Second Loan Documents and
all of its other debts, liabilities and obligations as they become due and pay
all debt service payments, real estate taxes, payables and other liabilities
arising from the operation of the Property prior to the Closing Date, subject to
apportionments to be made under this Agreement;
31
(ii) continue in effect all capital programs as reflected in
the current capital budget for the Property, which capital budget is attached
hereto as Schedule 6.1(a)(ii) (provided that it is understood that the
Partnership has agreed, at the request of the UPREIT, not to perform the
entranceway improvements to the Property, on account of which the Transfer
Consideration as set forth in this Agreement reflects a downward adjustment of
$230,764);
(iii) cause the Partnership's management company to keep in
full force and effect insurance comparable in amount and scope of coverage to
insurance now carried by it with respect to the Property, which types and
amounts of insurance are set forth on Schedule 6.1(a)(iii) hereto;
(iv) cause the Partnership's management company to maintain the
Partnership's books of account and records in the usual, regular and ordinary
manner and use diligent efforts to maintain in full force and effect all of the
Partnership's Authorizations;
(v) not take any action, fail to take any action or permit to
occur any event that would cause or constitute a material breach of or
inaccuracy in any representation or warranty set forth herein;
(vi) not amend, in any material respect, or grant any waivers
under the Existing Partnership Agreement (it being further acknowledged that the
Contributors or the constituent members or partners of Contributors shall be
permitted, prior to Closing, to make certain transfers of their interests, or
portions thereof, directly or in trust, to their immediate family members, and
in such case any such transfers shall be subject to the terms of this Agreement
and the UPREIT shall receive prompt and reasonably detailed notice thereof);
32
(vii) not enter into any new lease, license or occupancy
agreement with respect to the Property, or any Contracts, without the prior
written approval of the UPREIT, except (upon reasonable notice to the UPREIT)
for license agreements which are terminable upon 30 days notice by the
Partnership. In such connection, it is further agreed that the UPREIT shall
advise Contributors at least forty five (45) days prior to Closing as to which
existing service and maintenance contracts are to remain in effect after
Closing; and all other service and maintenance contracts shall be terminated by
the Closing Date without further liability of the Partnership;
(viii) not accept from any tenant payment of rent more than one
month in advance;
(ix) cause the Partnership's management company to operate and
manage the Property generally in its present manner, maintaining present
services in all material respects, and to maintain the Property in such state of
repair and working order as presently exists, ordinary wear and tear and subject
damage by regarding fire or other casualty; and
(x) cause the Partnership's management company to continue to
provide the First Lender and the Second Lender with all documentation and
information required under the First Loan Documents and the Second Loan
Documents, respectively.
33
6.2 Reasonable Efforts. Upon the terms and subject to the condition
hereof, between the date hereof and the Closing Date, each of the parties hereto
shall use its reasonable efforts to take, or cause to be taken, all appropriate
action and to do, or cause to be done, all things necessary, proper or advisable
under applicable Law to consummate and make effective the transactions
contemplated by this Agreement, including, without limitation, (i) using its
reasonable efforts to make all required regulatory filings and applications and
to obtain all Authorizations and consents, approvals, amendments and waivers
from parties to Contracts as are necessary for the consummation of the
transactions contemplated by this Agreement, and (ii) using its reasonable
efforts to cause the conditions to the consummation of the acquisition of the
Transferred Interests to be satisfied. Without limiting the foregoing, wherever
action is to be taken by the General Partner to cause the Partnership to perform
action specified in this Agreement, each of the Contributors (as partners of the
Partnership) agrees to take such reasonable confirmatory and ratifying action as
may be necessary to effectuate and validate such action.
(a) Notifications. Each party hereto shall give prompt notice to
the other parties upon becoming aware of: (i) any fact or condition that causes
or constitutes (or that reasonably could be expected to cause or constitute) a
breach of its representations and warranties set forth herein, or the
occurrence, or failure to occur, of any fact or condition that would (except as
expressly contemplated by this Agreement) cause or constitute a breach of or any
inaccuracy in any of its representations and warranties contained in this
Agreement had such representation or warranty. been made as of the time of
occurrence or discovery of such fact or condition; (ii) any material failure of
34
it or any of its officers, directors, employees or agents, to comply with or
satisfy any covenant, condition or agreement to be complied with or satisfied by
it hereunder; (iii) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement; (iv) any notices of default or of requirements to be complied
with under the First Loan Documents or the Second Loan Documents, and (v) any
actions, suits, claims, investigations or proceedings commenced or, to the best
of its knowledge, threatened against, relating to or involving or otherwise
affecting any Contributor, the Partnership, the UPREIT or PREIT, as the case may
be, or any of the transactions contemplated by this Agreement.
6.3 Transfer of Transferred Interests. Between the date hereof and the
Closing, no Contributor shall sell, assign, transfer or otherwise encumber all
or any portion of the Transferred Interests or any rights relating to the
Transferred Interests, whether voluntarily, by operation of law or otherwise,
including without limitation a transfer by reason of any merger, division or
consolidation.
6.4 Special Covenant Regarding Property. The UPREIT and PREIT as the
general partner thereof, covenant and agree that, if Closing occurs hereunder,
then the UPREIT shall not permit the Property, to be disposed of for a period of
eight (8) years following Closing in such manner as to cause the Contributors to
recognize taxable income and that any such disposition within such time period
must be pursuant to a tax-free exchange under Section 1031 of the Internal
Revenue Code or other tax-free disposition; provided that such disposition shall
be permitted in a taxable transaction if the Contributors are paid an amount
sufficient to reimburse them for any tax liability resulting from such
disposition by reason of Section 704(c) of the Internal Revenue Code, together
with all taxes payable on such reimbursement. The covenants of this Section 6.4
shall survive the Closing.
35
SECTION 7. CLOSING; CLOSING CONDITIONS; CLOSING DELIVERIES.
7.1 Time of Closing. The closing (the "CLOSING" and the date thereof,
the "CLOSING DATE") of the acquisition by the New General Partner and the New
Limited Partner of the Transferred Interests shall take place at the offices of
Blank Rome LLP, Philadelphia, Pennsylvania at 10:00 a.m. on a date specified by
the UPREIT to Contributors at least ten (10) days in advance, which date for
Closing shall be no earlier than the twentieth (20th) day following the
expiration of the Due Diligence Period, nor later than thirty (30) days
following the date on which the First Lender shall approve the assumption of the
First Loan as set forth in Section 7.2(a)(ii) below and the Second Lender shall
approve the assumption of the Second Loan as set forth in Section 7.2(a)(iii);
provided that the Closing Date shall be subject to an additional extension of up
to sixty (60) days if reasonably required by the First Lender or Second Lender
in order to document and satisfy applicable requirements for such loan
assumption.
7.2 Closing Conditions.
(a) Conditions Precedent to PREIT's and the UPREIT's Obligations.
The obligation of PREIT and the UPREIT to consummate the acquisition of the
Transferred Interests and to take the other actions required to be taken by them
at the Closing is subject to the fulfillment by or at the Closing of each of the
following conditions, any or all of which may be waived (but only by a duly
executed writing) by both PREIT and the UPREIT in their sole discretion:
36
(i) Due Diligence. The UPREIT shall not have notified
Contributors that it elects to terminate this Agreement by reason of its Due
Diligence inspections, investigations and analyses, as follows:
(A) During the forty five (45) day period following the
date hereof (the "DUE DILIGENCE PERIOD"), the UPREIT shall have the
right to (i) inspect the Property, and any and all portions
thereof, which inspection may include, but shall not be limited to,
zoning, engineering, architectural, environment and air quality
studies, utilities investigations, and review of governmental
records with respect to the Property, (ii) inspect all other
relevant documents, instruments and agreements relating to the
Property in the Partnership's or Contributors' possession or
control, including, without limitation, all documentation relating
to the First Mortgage and the Second Mortgage, rent rolls,
financial statements, service agreements, contracts and tax
returns, (iii) inspect the originals of all the Leases and all
pertinent correspondence and records, and (iv) inspect all plans
and specifications and other relevant documents relating to the
improvements which are part of the Property. Within the Due
Diligence Period (and thereafter pending Closing, but without any
contingency as set forth in this Section 7.2), the General Partner
shall give or cause to be given to the UPREIT and its designees
full and free access to the Property (subject to the rights of
tenants) and to the materials described above in accordance with
terms and conditions of this Section, and to any other relevant
37
information in the Partnership's or Contributors' possession or
control related to the Property. Contributors shall not be deemed
to represent or warrant the completeness or accuracy of any
materials furnished pursuant to this Section except to the extent
of a specific warranty or representation of Contributors or the
General Partner under this Agreement.
(B) If the UPREIT is not satisfied with the results of such
inspections or its analysis thereof, in its sole discretion, the
UPREIT shall be entitled to terminate this Agreement by notice to
Contributors given not later than the last day of the Due Diligence
Period, and thereupon this Agreement shall be null and void, the
parties shall have no further obligation or liability in connection
with this Agreement (except any liability which expressly survives
such termination) and the Deposit plus any interest earned thereon
shall be returned to the UPREIT. If the UPREIT fails to give such
notice of termination within such three (3) day period, the UPREIT
shall have waived its right to terminate this Agreement pursuant to
this Section 7.2(a)(i). However, the UPREIT shall be permitted to
extend the Due Diligence Period for up to an additional twenty (20)
days in the event its Phase I environmental study of the concludes
that a Phase II environmental report of the Property, or a further
environmental investigation, is required; provided that (x) the
UPREIT must make the request for such extension in writing to the
General Partner not later the last day of the Due Diligence Period,
and (y) such extension shall be for the sole purpose of obtaining
and making a determination of the acceptability of such
environmental studies.
38
(C) In conducting its investigations pursuant to the
foregoing provisions, the UPREIT and its agents and representatives
shall: (i) only enter the Property in the presence of an authorized
representative of the Partnership, at times and in such manner that
the Partnership reasonably approves; (ii) not unreasonably disturb
the tenants of the Property or interfere with their use of the
Property; (iii) not unreasonably interfere with the operation and
maintenance of the Property; (iv) not damage any part of the
Property or any personal property owned or held by any tenant; (v)
not injure or otherwise cause bodily harm to any persons; (vi)
promptly pay when due the costs of all tests, investigations and
examinations done with regard to the Property; (vi) not permit any
lien to attach to the Property by reason of the exercise of its
rights hereunder; and (vii) promptly restore the Property to the
condition in which the same was found before any such inspection or
tests were undertaken. The UPREIT shall, and does hereby agree to
indemnify, defend and hold Contributors and the Partnership
harmless from and against any and all claims, demands, suits,
obligations, payments, damages, losses, penalties, liabilities,
costs and expenses (including, but not limited to, reasonable
attorneys' fees) arising out of the UPREIT's or UPREIT's agents'
negligent actions taken in, on or about the Property in the
exercise of the rights granted pursuant hereto. In connection with
any entry onto the Property, the UPREIT shall maintain commercial
general liability insurance with a reputable insurer, providing
minimum limits of liability of One Million Dollars ($1,000,000) per
occurrence, Two Million Dollars ($2,000,000) aggregate, with an
umbrella excess liability policy in the minimum amount of Five
Million Dollars ($5,000,000) per occurrence bodily injury/ property
and Five Million Dollars ($5,000,000) aggregate damage/ occurrence,
naming the Partnership and its managing agent as additional
insureds. The provisions of this Section 7.2(a)(i)(C) shall survive
the Closing and/or any termination of this Agreement.
39
(ii) First Loan Assumption. First Lender shall have approved
the joint application of the Partnership and the UPREIT for the transfer of
partnership interests as contemplated in this Agreement (the "FIRST LOAN
TRANSFER APPLICATION"), without the imposition of any loan assumption fee, with
release of liability of Pan American as the existing Guarantor of recourse
obligations under the First Loan Documents, and under terms and conditions
(including without limitation the substitution of a recourse guarantor)
satisfactory to the UPREIT in its discretion. In such connection:
(A) Although there is no contemplated loan assumption fee
payable to the First Lender, it is acknowledged that First Lender
will require various processing, legal and third-party fees to be
paid to it in connection with the First Loan Transfer Application
and, if the First Loan Transfer Application is approved, in
connection with the effectuation of the transfer through such
documentation and deliverables as the First Lender shall require
(collectively, the "LOAN TRANSFER COSTS"). The UPREIT shall bear
the costs of all required legal opinions relating to the documents
to be executed by the UPREIT and/or its designees, and by the
Partnership as of the time that the transfer of partnership
interests is effectuated, as well as the costs of any required
non-consolidation or other opinions required by rating agencies and
relating to the revised structure of the Partnership and its
partners. All other Loan Transfer Costs shall be borne in equal
shares by the UPREIT, on the one part, and by Contributors, on the
other).
40
(B) In the event the First Lender requires that a
substitute guarantor of recourse obligations assume liability for
periods prior to Closing, then Pan American shall, by documentation
reasonably satisfactory to the UPREIT, indemnify, defend and hold
such substitute guarantor harmless for all claims, demands,
liabilities, costs and expenses (including reasonable attorneys'
fees) with respect to the liabilities assumed by such substitute
guarantor which are attributable to the period of time prior to the
Closing hereunder, such indemnification to survive Closing without
regard to any time limitations in this Agreement.
(C) Within ten (10) days from the date of this Agreement,
or as soon thereafter as reasonably practicable, the parties shall
complete and submit the First Loan Transfer Application and submit
same together with the required fees and deposits (to be posted by
the parties responsible for same as set forth in subclause (A)
above) as set forth in Section 10(b) above, including such special
requests as the UPREIT shall propose which deviate from the
standard requirements. The appropriate parties shall promptly
supply to the First Lender such financial information and other
information as the First Lender shall from time to time reasonably
request in connection with its consideration of the First Loan
Transfer Application.
41
(iii) Second Loan Assumption. Second Lender shall also have
approved the joint request of the Partnership and the UPREIT for the transfer of
partnership interests as contemplated in this Agreement (the "SECOND LOAN
TRANSFER APPLICATION"), without the imposition of any loan assumption fee, with
release of liability of Pan American as the existing Guarantor of obligations
under the Second Loan Documents (if Pan American has not previously been
released as a guarantor), and under terms and conditions (including without
limitation the elimination of the requirement for a guarantor, or the
substitution of a new guarantor designated by the UPREIT if such substitute
guarantor is required) satisfactory to the UPREIT in its discretion. In such
connection, the parties agree to pay and share the costs imposed for the Second
Loan Transfer Application, and to cooperate in promptly making application, in
the same fashion as for the First Loan Transfer Application, with the
understanding that no special securitization or like opinions will be required.
(iv) Title. The UPREIT, on behalf of the Partnership, shall
have obtained an unconditional commitment from the Title Company, to issue its
title insurance policy to the Partnership at Closing with a "non-imputation"
endorsement which shall effectively waive any defense of said title insurance
company based upon any knowledge or action of any of the Contributors obtained
or occurring prior to the Closing Date, and in such connection Contributors
agree to execute such reasonable and customary affidavits in favor of the Title
Company as may be necessary for issuance of such endorsement. At Closing, title
to the land and improvements within the Property shall be free and clear of all
defects, liens, encumbrances, covenants, restrictions and easements, excepting
only the Permitted Exceptions as hereinafter defined, and such title shall,
subject to the Permitted Exceptions, be good and marketable and insurable at
such regular rates by the Title Company. Contributors shall have the right to
provide affidavits, indemnifications or other assurances to the Title Company
for the purpose of removing or insuring over any standard exceptions so long as
recourse therefor is out of assets other than Partnership assets. In connection
with the foregoing:
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(A) The UPREIT has heretofore ordered from the Title
Company a commitment to insure title to the Property (the
"COMMITMENT") and shall deliver a copy thereof to Contributors
promptly upon receipt. The UPREIT may, at its option, order a
current survey of the Property from a surveyor of its choice
("SURVEY"). If the Commitment or Survey reflects or discloses any
defect, exception, or other adverse matter affecting the Property
("TITLE DEFECTS") that impair the use, value or utility of the
Property and are unacceptable to the UPREIT, then the UPREIT shall
provide Contributors with written notice of such objections within
the Due Diligence Period.
(B) If the UPREIT notifies Contributors of Title Defects
as aforesaid, Contributors may, at their sole option and without
any obligation to do so except as set forth in Section 11.2(b)
below, elect to cause the Partnership to cure or remove the
objections (or to furnish to the UPREIT assurances of such cure or
removal at or prior to Closing), provided, however, that except for
the First Mortgage and the Second Mortgage, Contributors shall
cause the Partnership to remove any judgments and any mortgages
securing borrowed money against the Property and any other
voluntary lien or encumbrance that can be reduced to a monetary
amount. Contributors shall also cause any standard title
exceptions, which are customarily removed by affidavit, to be so
removed. The Contributors shall furnish to the UPREIT, within
twenty (20) days after their receipt of notice of the Title
Defects, a written statement of their intention in such regard.
Promptly thereafter, the UPREIT shall advise the Contributors of
whether it is satisfied to proceed with this transaction as a
result of the actions to be taken by Contributors, or whether it is
unsatisfied to proceed and elects to terminate this Agreement.
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(C) Any exceptions to title as disclosed in the
Commitment, as to which the UPREIT has not given notice as
constituting Title Defects, and any Title Defects which the UPREIT
elects to accept in accordance with the foregoing procedures, shall
be known as "PERMITTED EXCEPTIONS."
(v) Representations and Warranties. The representations and
warranties of the Contributors set forth in this Agreement shall be true and
correct in all material respects, in each case as of the date of this Agreement
and as of the Closing Date as though made on and as of the Closing Date.
(vi) Performance of Covenants. All of the agreements,
covenants and obligations that any Contributor is required to perform or to
comply with pursuant to this Agreement at or prior to the Closing shall have
been duly performed and complied with in all material respects.
(vii) Legal Matters. The performance of the Preit Transaction
Documents and the Contributor Transaction Documents and the consummation of the
Closing shall not, directly or indirectly (with or without notice or lapse of
time), violate, contravene, conflict with or result in a violation of any Law
and shall not violate any order of any court or governmental body of competent
jurisdiction, and no suit, action, investigation or legal or administrative
proceeding shall have been brought or threatened by any Person that questions
the validity or legality of this Agreement or the transactions contemplated
hereby.
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(viii) Consents and Approvals. Each consent, approval,
ratification, waiver or other authorization of any Person necessary, in the
reasonable opinion of PREIT and the UPREIT, for the consummation of the
transactions contemplated hereby shall have been obtained and shall be in full
force and effect, and no such consent, approval, ratification, waiver or other
authorization: (x) shall have been conditioned upon the modification,
cancellation or termination of any Contract, right or Authorization of PREIT in
a manner unsatisfactory to the UPREIT or PREIT, or (y) shall impose on PREIT,
the Partnership or the UPREIT any material condition, provision or requirement
not presently imposed and which is unsatisfactory to the UPREIT or PREIT.
(ix) Tenant Options. Any applicable pre-emptive rights of
purchase in favor of any tenant of the Property, which is or could be triggered
by the transactions referred to herein, shall have been irrevocably waived.
(x) Board Approval. Within thirty (30) days following the date
hereof, the Board of Trustees of PREIT shall have approved the transactions
embodied in this Agreement.
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(b) Conditions Precedent to the Contributors' Obligations. The
obligation of the Contributors to consummate the contribution of the Transferred
Interests contemplated by this Agreement and to take the other actions required
to be taken by them at the Closing is subject to the fulfillment by or at the
Closing of each of the following conditions, any or all of what may be waived by
the Contributors in their reasonable discretion:
(i) Representations and Warranties. Each of the representations
and warranties of PREIT and the UPREIT set forth in this Agreement shall be true
and correct in all material respects, in each case as of the date of this
Agreement and as of the Closing Date as though made on and as of the Closing
Date.
(ii) Performance of Covenants. Each of the agreements,
covenants and obligations that PREIT or the UPREIT is required to perform or to
comply with pursuant to this Agreement at or prior to the Closing shall have
been duly performed and complied with in all material respects.
(iii) Legal Matters. The performance of the Preit Transaction
Documents and the consummation of the Closing shall not, directly or indirectly
(with or without notice or lapse of tine), violate, contravene, conflict with or
result in a violation of any Law and shall not violate any order of any court or
governmental body of competent jurisdiction, and no suit, action, investigation
or legal or administrative proceeding shall have been brought or threatened by
any Person that questions the validity or legality of this Agreement or the
transactions contemplated hereby.
46
7.3 Deliveries at the Closing. At the Closing, in addition to the other
actions contemplated elsewhere herein:
(a) Contributor Deliveries. The Contributors shall deliver or cause
to be delivered to the New General Partner and the New Limited Partner and or
the UPREIT or PREIT, as the case may be:
(i) An assignment by each of such Contributors of its
Transferred Interest, in the form set forth on Schedule 7.3 (a)(i) hereto; and
in such connection, for purposes of allocating taxable income and losses between
the portion of the Partnership's taxable year up to and including the date of
Closing and the portion of the Partnership's taxable year after the date of
Closing to take into account the varying interests of the partners of the
Partnership as a result of the acquisition of the Transferred Interests at the
Closing, there shall be an interim closing of the books of the Partnership as of
the close of the date of Closing as permitted by Treasury Regulations under
Section 706 of the Internal Revenue Code;
(ii) An Amendment to the currently effective Certificate of
Limited Partnership of the Partnership, reflecting the admission of the New
General Partner as a general partner and the withdrawal of the General Partner
as a general partner;
(iii) A termination of the existing management agreement for
the Property, without further liability of the Partnership;
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(iv) certificates of good standing of a recent date for each
Contributor Entity certified by the Secretary of State or corresponding
certifying authority of the state of incorporation or organization of such
Contributor Entity, and Uniform Commercial Code financing statement searches
disclosing no grant of a security interest in the Transferred Interests;
(v) such documents and instruments as are required by the First
Lender and Second Lender to effectuate the assumption of the First Mortgage and
the Second Mortgage as contemplated herein, and such documents and instruments
as are required by such lenders to effectuate the assumption of said mortgages
with the release of liability of Pan American Associates as a guarantor;
(vi) a counterpart limited partner signature page for the
UPREIT Partnership Agreement, and any related counterpart execution of
documentation evidencing the issuance of the UPREIT Units to such Contributor
and such Contributor's agreement to be bound by the provisions thereof with
respect to its UPREIT Units;
(vii) The Registration Rights Agreements referred to in
subsection (b) below;
(viii) The Tenant Estoppels and Condominium information
referenced in Section 9 of this Agreement);
(ix) An updated rent roll of the Property, certified to be
accurate and complete to the knowledge of the General Partner (based upon the
certificate of PREIT-▇▇▇▇▇, Inc. as the manager of the Property, except to the
extent that the General Partner has actual knowledge that any portion of said
rent roll is not true and correct);
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(x) Letters to all tenants of the Property, in a form approved
by the UPREIT, notifying them of any change, as desired by the UPREIT, for
payment of future rent, and if desired by the UPREIT, similar letters for
service providers and contract parties;
(xi) A certificate duly executed by each Contributor confirming
that it is not a foreign person for purposes of the Foreign Investment in Real
Property Tax, as revised by the Deficit Reduction Act of 1984; and
(xii) such other documents and instruments as the UPREIT or
PREIT may reasonably request to effectuate or evidence the transactions
contemplated by this Agreement. It is further understood that the Partnership
shall retain all records and files pertaining to the operation and maintenance
of the Property and the tenancies therein (including without limitation records
necessary to calculate, verify and/or ▇▇▇▇ tenants for common area expenses and
other operating expenses related to the Property) and, to the extent not located
at the Property, Contributors shall cause such records and files to be delivered
to the UPREIT or shall allow the UPREIT to remove such items from the location
in which they are stored.
(b) UPREIT Deliveries. The UPREIT shall deliver or cause to be
delivered to the Contributors the following:
49
(i) the UPREIT Units to be delivered at Closing as set forth in
this Agreement;
(ii) a Registration Rights Agreement for the Class A Unit
holders in the form set forth on Schedule 7.3(b)(ii) hereto; and
(iii) each of the documents referred to in Section 7.3(a)(i)
and (ii), duly executed by the New General Partner and/or New Limited Partner,
as appropriate, the documents referred to in Section 7.3(a)(v), duly executed by
such parties as are required for such purpose by the First Lender and/or Second
Lender, and the documents referred to in Section 7.3(a) (vi), (vii) and (viii).
(c) Cooperation. The UPREIT and the Contributors will cooperate in
good faith in executing such documentation (such as limited guarantees of
indebtedness by the Contributors, if so desired by the Contributors at each
Contributor's option, and not as their obligation) to avoid recognition of
income or gain to the Contributors by reason of a constructive distribution to
them under Section 752 of the Internal Revenue Code relating to relief from
liabilities.
(d) Other Documents. Each party shall deliver or cause to be
delivered, as the case may be, to the other parties hereto such other documents,
instruments, certificates and opinions as may be required by this Agreement.
SECTION 8. CLOSING COSTS AND ADJUSTMENTS.
8.1 Lease Costs. For all Leases of the Property, all brokerage
commissions, fit-out and other costs and allowances to be paid by the landlord
(other than free rent, if any, applicable to periods of time after the Closing
Date) shall be fully discharged by the Partnership at or prior to Closing (i.e.,
without negative financial impact on the interests of the New Partners or the
UPREIT), or a reserve or credit shall be made available therefor for the benefit
of the UPREIT.
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8.2 Realty Transfer Taxes. It is contemplated that, by reason of the
acquisition of partnership interests as contemplated in this Agreement, no
realty transfer taxes will be due in connection with this transaction. However,
if and to the extent such realty transfer taxes shall be asserted to be due,
Contributors shall be solely responsible for same.
8.3 Other Costs. The UPREIT shall pay for the costs of title insurance,
search fees, and survey fees (if any). Each party shall pay its own legal fees.
8.4 Prorations and Adjustments at Closing.
(a) Basic Adjustments. At Closing, the following items pertaining
to the Property shall be prorated and adjusted between Contributors and the
UPREIT as of 11:59 PM on the day prior to the Closing Date (except as expressly
provided otherwise herein):
(i) All base rent, percentage rent, additional rent and other
sums due pursuant to Leases, provided that no proration shall be made at Closing
for any rents or other sums under Leases which are delinquent as of Closing, but
instead the New General Partner shall cause the Partnership to use reasonable
efforts after Closing to cause all delinquent rents and charges to be collected
and shall cause such amounts to be paid to Contributors when and if collected to
the extent the same are attributable to periods prior to Closing, except that
all rents and other charges collected after Closing shall be first applied to
all current rents and other charges due to the Partnership;
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(ii) Contributors shall credit the UPREIT for all security and
other tenant deposits held by the Partnership plus interest due thereon to the
tenants, if any, pursuant to the Leases, or shall turn over to the UPREIT such
accounts, if any, as comprise such deposits;
(iii) Interest on the First Mortgage and the Second Mortgage;
(iv) All real estate taxes respecting the Property, to the
extent not payable directly by tenants of the Property;
(v) Water, electricity, sewer and other utility charges to the
extent not payable directly by tenants to the utility company, based, to the
extent practicable, on final meter readings and final invoices. The General
Partner shall endeavor to have the meters read for all utilities servicing the
Property prior to Closing;
(vi) Assessments under the Condominium; and
(vii) Charges payable under any Contracts which continue in
effect after Closing.
(b) Escrows and Reserves. At Closing, the Contributors shall
receive credit for the amount of all escrows and reserves deposited or held in
connection with the First Mortgage, provided, however, that no credit shall be
made for any escrow or reserve which is inconsistent with the General Partner's
representations under Section 4.2(j) hereof.
52
(c) Manner of Payment of Adjustment. Unless otherwise agreed
between the UPREIT and the Contributors, the net amount of all adjustments and
apportionments hereunder (the "NET ADJUSTMENT AMOUNT") shall be implemented by
means of an adjustment in the Cumberland Unit Value as set forth in Section
2.1(c)(ii) above, and by a corresponding increase or decrease in the number of
UPREIT Units to be issued pursuant to said Section.
(d) Post Closing Adjustment. In the event any of the prorations or
adjustments pursuant to this Section 8.5 are not reasonably susceptible of
precise determination on the Closing Date (including without limitation a
proration on account of additional rents payable by tenants), then the proration
or adjustments shall be made as reasonably estimated, and a post-Closing cash
adjustment shall be made between the parties promptly following the time that
the precise determination shall be made. Nothing contained in this Section 8.5
shall prevent either party from disputing any claim made by the other party that
an adjustment made at Closing was erroneous, provided that such claim shall be
made not later twelve (12) months following Closing for matters concerning
Leases, and not later than three (3) months following Closing for all other
matters. Each party shall fully cooperate with the other in making its records
available for inspection and copying in connection with any amounts due from
tenants of the Property.
53
8.5 Cash. The General Partner shall cause the Partnership, prior to
Closing, to apply cash and cash equivalents of the Partnership (not including
sums in any required escrow or reserve accounts maintained pursuant to the First
Loan Documents), to closing-related expenses under this Agreement, or to
distribute same to the Contributors, and it is not intended that the UPREIT will
acquire any interest therein.
8.6 Statement. At Closing, the parties shall execute and deliver to one
another a statement detailing the Net Adjustment Amount and all relevant
components and calculations thereof.
8.7 Survival. The provisions of this Section 8 shall survive Closing.
SECTION 9. THIRD PARTY CERTIFICATES.
9.1 Tenant Estoppel Certificates. The General Partner shall use its
reasonable efforts to enable the Partnership to obtain estoppel certificates
(the "TENANT ESTOPPELS"), from all tenants under the Leases, substantially in
the form set forth on Schedule 9.1 hereto and including the information thereon
(or as otherwise prescribed by the terms of the applicable Lease). Any adverse
claim or matter set forth in a Tenant Estoppel (i.e., an exception or assertion
which is adverse to the interests of the landlord or is contrary to the
representations herein) is referred to as an "ADVERSE CLAIM."
54
9.2 Required Estoppels. As a condition of the obligation of the UPREIT
to close hereunder, the Partnership shall have obtained Tenant Estoppels without
Adverse Claims, at or prior to Closing, from (A) Penney's, Boscov's, Value City,
Home Depot, Regal Theater, ▇▇▇▇▇▇▇▇'▇, Bed Bath & Beyond and Toys 'R Us (the
foregoing being referred to as the "MAJOR TENANTS"), and from (B) tenants whose
leases cover at least two thirds (2/3) of the balance of the gross leaseable
area of the Property (i.e., the balance after deduction for the Major Tenants).
With respect to any Leases for which a Tenant Estoppel has not been obtained (or
with respect to Tenant Estoppels which do not contain all information as set
forth in Section 4.2(o)), the representations of the General Partner as set
forth in Section 4.2(o) shall be deemed to remain in effect unless the General
Partner delivers to the UPREIT, at or prior to Closing, a statement disclosing
any qualifications to such representations (which shall be deemed encompassed
within the meaning of an Adverse Claim as above set forth). For any tenancy in
which an Adverse Claim has actually been asserted, the UPREIT shall have the
right to establish an escrow arrangement, with an escrowee mutually approved by
the General Partner and the UPREIT, whereby an amount reasonably estimated to
cover the expense of curing the Adverse Claim (assuming the validity of the
Adverse Claim, but without prejudice to the right of the General Partner to deny
such validity), shall be placed in escrow, with such escrow to be administered
in a manner reasonably and jointly approved by the General Partner and the
UPREIT so as to serve as security for the cure of the Adverse Claim or for
resolution of disputes relating thereto, with the further understanding that the
General Partner shall have the reasonable right to control the contest and/or
negotiation of the Adverse Claim. If the amount reasonably estimated to cure all
Adverse Claims exceeds One Hundred Fifty Thousand Dollars ($150,000), and the
parties cannot otherwise agree for arrangements with respect to the Adverse
Claims, then the Contributors may terminate this Agreement, whereupon the
provisions of Section 11.2(b) of this Agreement shall be applicable.
55
9.3 Indemnity. The General Partner agrees to indemnify and hold the
UPREIT and the Partnership harmless, from and after Closing, from any Adverse
Claims, provided that the General Partner is afforded a reasonable opportunity,
through reasonable means, to contest, investigate and/or satisfy the claim.
9.4 Condominium. At Closing, the General Partner shall cause the
Partnership to obtain and deliver to the UPREIT a certificate from the
association which has managerial responsibility for the Condominium, stating
that to the knowledge of such association, the condominium units comprising the
Property are not subject to unpaid assessments under, or are otherwise in
violation of any applicable requirements of, the Condominium.
SECTION 10. INDEMNIFICATION
(a) Indemnification by Contributors and General Partner. Each
Contributor, as to its separate undertakings, warranties and representations
hereunder, and the General Partner, as to its undertakings, warranties and
representations relating to the Partnership, shall and does hereby indemnify,
defend and hold harmless PREIT, the UPREIT and the New Partners (collectively,
"Preit Indemnitees") against and in respect of any and all losses, costs,
expenses (including, without limitation reasonable attorneys' fees), claims,
actions, damages, obligations, and liabilities (collectively, "DAMAGES"),
arising out of, based upon or otherwise in respect of any inaccuracy in or
breach of any such undertaking, representation or warranty made in or pursuant
to this Agreement.
56
10.2 Indemnification by PREIT. Subject to applicable limitations set
forth in Section 5 above, the UPREIT and PREIT shall indemnify, defend and hold
harmless each Contributor against and in respect of any and all Damages arising
out of, based upon or otherwise in respect of any inaccuracy in or breach of any
undertaking, representation or warranty of PREIT or the UPREIT made in or
pursuant to this Agreement.
10.3 Limitation. No party may assert a claim for indemnification
pursuant to this Section 10 unless the Closing has occurred under this
Agreement. Furthermore, and notwithstanding anything to the contrary set forth
in this Agreement, with respect to any inaccuracy of a representation or breach
of a warranty by a party (the "WARRANTING PARTY") which survives Closing and
which is first asserted by another party (the "BENEFITING PARTY") after Closing,
the Warranting Party shall not be liable to the Benefiting Party (by way of
indemnification or otherwise) with respect to such representation or warranty
unless and until such time, if ever, as the aggregate monetary value of claims
with respect to all warranties and representations of the Warranting Party shall
exceed Fifty Thousand Dollars ($50,000). For the purpose of calculating the
foregoing threshold amount of $50,000, there shall be included all claims first
asserted after Closing (x) against either or both of PREIT and the UPREIT, on
one hand, and (y) against any, some or all of Contributors and the General
Partner, on the other hand.
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10.4 Procedure For Indemnification - Third Party Claims.
(a) Within thirty days after receipt by an indemnified party of
notice of the commencement of any proceeding against it to which the
indemnification in this Section 10 relates, such indemnified party shall, if a
claim is to be made against an indemnifying party under Section 10, give notice
to the indemnifying party of the commencement of such proceeding, but the
failure to so notify the indemnifying party will not relieve the indemnifying
party of any liability that it may have to any indemnified party, except to the
extent that the indemnifying party, demonstrates that the defense of such
proceeding is materially prejudiced by the indemnified party's failure to give
such notice.
(b) If any proceeding referred to in paragraph (a) above is brought
against an indemnified party and it gives notice to the indemnifying party of
the commencement of such proceeding, the indemnifying party will be entitled to
participate in such proceeding and, to the extent that it wishes (unless (i) the
indemnifying party is also a party to such proceeding and the indemnified party
determines in good faith that joint representation would be inappropriate, or
(ii) the indemnifying party fails to provide reasonable assurance to the
indemnified party of its financial capacity to defend such proceeding and
provide indemnification with respect to such proceeding), to assume the defense
of such proceeding with counsel reasonably satisfactory to the indemnified party
and, after notice from the indemnifying party to the indemnified party of its
election to assume the defense of such proceeding, the indemnifying party will
not, as long as it diligently conducts such defense, be liable to the
indemnified party under Section 10 for any fees of other counsel or any other
expenses with respect to the defense of such proceeding, in each case
58
subsequently incurred by the indemnified party in connection with the defense of
such proceeding, other than reasonable costs of investigation. If the
indemnifying party assumes the defense of a proceeding, (A) it will be
conclusively established for purposes of this Agreement that the claims made in
that proceeding are within the scope of and subject to indemnification; (B) no
compromise or settlement of such claims may be effected by the indemnifying
party without the indemnified party's consent unless (l) there is no finding or
admission of any violation of Law by the indemnified party (or any affiliate
thereof) or any violation of the rights of any Person and no effect on any other
claims that may be made against the indemnified party, and (2) the sole relief
provided is monetary damages that are paid in full by the indemnifying party.
The indemnified party will have no liability with respect to any compromise or
settlement of the claims underlying such proceeding effected without its
consent. If notice is given to an indemnifying party of the commencement of any
proceeding and the indemnifying party does not, within ten days after the
indemnified party's notice is given, give notice to the indemnified party of its
election to assume the defense of such proceeding, the indemnifying party will
be bound by any determination made in such proceeding or any compromise or
settlement effected by the indemnified party.
(c) Notwithstanding the foregoing, if an indemnified party
determines in good faith that there is a reasonable probability that a
proceeding may adversely affect it or its affiliates other than as a result of
monetary damages for which it would be entitled to indemnification under this
Agreement, the indemnified party may, with respect to those issues, by notice to
the indemnifying party, assume the exclusive right to defend, compromise, or
settle such proceeding, but the indemnifying party will not be bound by any
determination of a proceeding so defended or any compromise or settlement
effected without its consent.
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10.5 Procedure for Indemnification - Other Claims. A claim for any
matter not involving a third party claim may be asserted by notice to the party
from whom indemnification is sought.
10.6 Survival. The rights and obligations of the parties set forth in
this Section 10 shall survive the Closing; provided that any claim for which
indemnification is sought is asserted prior to expiration of the applicable
survival period, as set forth in this Agreement, for the representation,
warranty or undertaking in question.
SECTION 11. TERMINATION.
11.1 Termination. This Agreement may be terminated as follows:
(i) by any party hereto, if the Closing has not occurred (other
than through the failure of the party seeking to terminate this Agreement to
comply fully with its obligations under this Agreement) within one hundred
twenty (120) days following the date hereof, or such later date as the parties
may mutually agree upon in writing; provided, however, that such period of one
hundred twenty (120) days shall be extended for up to sixty (60) additional days
if reasonably required in order to obtain the consent of the First Lender to the
First Loan Transfer Application as set forth in Section 7(a)(ii) above and to
implement the transfer procedures required in connection therewith;
60
(ii) by mutual consent of the UPREIT, PREIT and the
Contributors;
(iii) by PREIT or the UPREIT, if any of the conditions in
Section 7.2(a) have not been satisfied as of the Closing Date or if satisfaction
of such a condition is or becomes impossible (other than through the failure of
PREIT or the UPREIT to comply with its obligations under this Agreement) and
PREIT and the UPREIT have not waived all such unsatisfied conditions before
termination pursuant to this subparagraph (iii); or
(iv) by the Contributors if any of the conditions in Section
7.2(b) have not been satisfied as of the Closing Date or if satisfaction of such
a condition is or becomes impossible (other than through the failure of any
Contributor to comply with its obligations hereunder), or if the First Lender or
Second Lender have not approved the assumption of their respective loans as set
forth herein, and the Contributors have not waived all such unsatisfied
conditions before termination pursuant to this subparagraph (iv).
11.2 Procedure for Termination; Effect of Termination. A party
terminating this Agreement pursuant to this Section 11 shall give written notice
thereof to each other party hereto, whereupon this Agreement shall terminate and
the transactions contemplated hereby shall be abandoned without further action
by any party, the Deposit and any interest earned thereon shall be returned to
the UPREIT, and all further obligations of the parties under this Agreement will
terminate (other than any obligations which expressly survive Closing);
provided, however, that:
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(a) If the reason for such termination is attributable to the
default of the UPREIT, then the Deposit shall be retained by Contributors as
liquated damages as set forth in Section 2.1(a) above;
(b) If the reason for such termination is attributable to the
default of any of the Contributors, then the Deposit shall be refunded to the
UPREIT and, in addition, Contributors shall reimburse to the UPREIT its
reasonable costs and expenses (including reasonable legal fees) in connection
with this Agreement and the efforts to proceed to Closing hereunder, including
any non-refundable fees paid in connection with applications for loan assumption
with the First Lender and/or Second Lender, not to exceed One Hundred Fifty
Thousand Dollars ($150,000); provided that the UPREIT shall retain the right to
specific performance of the provisions of this Agreement; and provided further
that If Contributors shall be unable to cause title to the Property to be in
such state as is required hereunder, or if any other condition is not satisfied,
the UPREIT may elect to accept such title or status as Contributors can
effectuate, in which case Closing shall proceed, subject to all of the other
terms and conditions of this Agreement, but without any abatement or reduction
of the Transfer Consideration, except that the Transfer Consideration shall be
reduced by (A) any judgment and any impermissible monetary lien in a fixed and
ascertainable amount voluntarily created by any of the Contributors or the
Partnership, plus (B) up to $150,000 to cure or correct other title defects or
items of non-compliance which are capable of cure or correction in an amount
which is reasonably and objectively ascertainable.
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SECTION 12. CASUALTY AND CONDEMNATION.
12.1 Casualty. For purposes of this Agreement, a "minor casualty" shall
mean any casualty occurring to any portion of the Property which would not,
according to a reasonable estimate obtained by the Partnership from a reputable
contractor, require more than One Million Dollars ($1,000,000), or more than 150
days, to fully repair, and which would not entitle any tenant(s) occupying more
than 15,000 square feet of space, in the aggregate, to terminate their leases.
Any other casualty shall be a "major casualty." If, prior to Closing hereunder,
any portion of the Property is subjected to a major or minor casualty, the
General Partner shall give the UPREIT prompt written notice thereof. If such
casualty is a minor casualty, this Agreement shall remain in full force and
effect and the transaction contemplated hereby shall be effected with no further
adjustment, provided that at Closing, the Partnership shall retain all rights to
the insurance proceeds for such casualty and none of such proceeds shall have
been distributed to any partners of the Partnership except as may have been
applied to restoration and repair. If the repair and restoration is not
completed at the time of Closing, the UPREIT shall at Closing receive a credit
against the Transfer Consideration in the amount of any insurance "deductible"
to the extent such deductible amount is reasonably required for restoration and
repair. If such casualty is a major casualty, the UPREIT shall have the option,
exercisable within thirty (30) days after the date that the UPREIT receives
notice of such casualty and the extent thereof, to either: (i) terminate this
Agreement, whereupon this Agreement shall be null and void, the Deposit plus
interest earned thereon shall be refunded to the UPREIT, and neither party shall
have any further liability or obligation in connection with this Agreement
(except for liability which expressly survives such termination), or (ii)
proceed to Closing whereupon the insurance proceeds and credit for the
applicable deductible amount shall be made available for the benefit of the
UPREIT as above set forth. Notwithstanding the foregoing, in the event of a
minor casualty or a major casualty for which the UPREIT has not terminated this
Agreement, and if either party reasonably believes the damage can be fully
repaired within a period of 120 days thereafter, such party may elect, by
written notice to the other, to allow an extension of the Closing Date for up to
120 days in order to effectuate such repair and restoration.
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12.2 Eminent Domain. If, prior to Closing hereunder, all or any part of
the Property is taken by eminent domain or condemnation (or sale in lieu
thereof), other than the pending condemnation with respect to the relocation of
▇▇▇▇▇▇ Road as described on Schedule 4.2 (f), and other than a de minimis taking
which does not have a meaningful impact on the Property, or if notice of
intended condemnation is received by the Partnership, the General Partner shall
give the UPREIT prompt written notice thereof. Within twenty (20) days from the
date that the UPREIT receives such notice, the UPREIT may, by written notice to
the Contributors, elect to terminate this Agreement, whereupon this Agreement
shall be null and void, the Deposit plus interest earned thereon shall be
refunded to the UPREIT, and neither party shall have any further liability or
obligation to the other in connection with this Agreement (except for liability
which expressly survives such termination). If no such election to terminate is
made, this Agreement shall remain in full force and effect and at Closing, the
Partnership shall retain, without prior distribution to any of its partners, all
rights to condemnation awards that have been or that may thereafter be made for
such taking. The foregoing shall not apply to the ▇▇▇▇▇▇ Road Condemnation,
which is separately dealt with under Section 13 below.
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SECTION 13. SPECIAL PROVISIONS.
13.1 ▇▇▇▇▇▇ Road/Route 47 Widening.
(a) The UPREIT acknowledges that, pursuant to the terms of that
certain Agreement of Sale dated September 8, 2003 between the Partnership, as
seller and the State of New Jersey, as buyer (the "NJ DOT Agreement") a copy of
which is attached hereto as Schedule 13.1(a), the Partnership has agreed to
convey a certain portion of the Property to the State of New Jersey in
consideration of payment of $244,250 (the "Proceeds"). The UPREIT further
acknowledges that the conveyance may not occur prior to the Closing Date. In the
event the conveyance has not occurred prior to the Closing Date, the UPREIT
agrees that, subsequent to Closing Date, it will cause such conveyance to occur
pursuant to the terms of the NJ DOT Agreement.
(b) The UPREIT further acknowledges that the approval of such
conveyance by the First Lender is contingent upon the Proceeds being applied
first to the Lender's costs and expenses and the balance being deposited in the
Existing Tenant Improvements and Leasing Commissions (as defined in the First
Loan Documents) reserve account. A copy of the Lender's approval is attached
hereto as Schedule 13.1(b). The UPREIT agrees that in the event the above
described conveyance is not closed, and the Proceeds (net of the Lender's costs
and expenses) (the "Net Proceeds") placed in the Tenant Improvements and Leasing
Commission Reserve Account, by the Closing Date such that the Contributors
receive credit for such amount pursuant to Section 8.5(b) of this Agreement,
then promptly upon receipt of the Proceeds the UPREIT shall pay to the
Contributors an amount equal to the Net Proceeds, less any reasonable legal fees
incurred by the UPREIT in consummating the conveyance.
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13.2 BJ's Receivable. The UPREIT acknowledges that, pursuant to Section
3.5 of that certain Land Acquisition and Construction Agreement dated December
23, 2002, among Cumberland Mall Associates, as seller, RGR Mall Construction,
LLC, as construction company and BJ's Wholesale Club, Inc. ("BJ's"), as buyer
(the "BJ's Agreement"), the Completion Payment (as defined in the BJ's
Agreement), including the Warranty Reserve described in Section 3.5(A) of the
BJ's Agreement, has not been received by the Partnership. The UPREIT agrees that
to the extent the Completion Payment is not received by the Partnership prior to
the Closing Date, the UPREIT will cause the Partnership to enforce the
obligations of BJ's to make the Completion Payment and that the Completion
Payment, or part thereof, less such amounts as may reflect reimbursement of the
Partnership's reasonable costs of such enforcement, shall be the sole property
of Contributors. Any Completion Payment, or part thereof, received by the
Partnership and/or the UPREIT subsequent to the Closing Date shall be held in
trust for and paid to the Contributors promptly upon receipt, less such amounts
as may be required to the Partnership's reasonable costs to enforce collection
13.3 UEZ Reserve. The UPREIT acknowledges that the sum of $20,000 has
been placed in a reserve (the "Antenna Reserve") with the Second Lender pending
an inspection of the antenna and amplification system at the Property by the
police department to confirm appropriate radio reception at the Property. The
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UPREIT agrees that except as set forth below, the Antenna Reserve shall be the
sole Property of Contributors and that at such time as the Antenna Reserve, or
any portion thereof, is released to the Partnership, such amounts shall be held
in trust for and paid over to Contributors promptly upon receipt. To the extent
that the inspection reveals that any further work is needed in connection with
the system, Contributors agree that the Antenna Reserve, or such portion thereof
as is needed to complete the work, may be retained by the UPREIT for such
purpose.
13.4 Conveyance of Boscov's Unit. The UPREIT acknowledges that,
pursuant to an Agreement to Enter Into Termination of Ground Lease, Operating
and Repurchase Agreement between the Partnership and Berks County Real Estate
Associates, IV, LP ("Berks"), a draft of which is attached hereto as Schedule
13.4 (the "Boscov's Agreement"), the Partnership has certain obligations to
convey Unit C to Berks on at least thirty (30) days prior notice from Berks. The
UPREIT acknowledges that it is purchasing the Property subject to the Boscov's
Agreement and agrees that the Partnership shall be bound by the provisions
thereof. The Partnership shall not materially amend the Boscov's Agreement
without the prior written consent of the UPREIT.
13.5 Sign Relocation. The UPREIT acknowledges that the Partnership has
incurred certain expenses in connection with the relocation of the Regal pylon
sign and that the Partnership is entitled to reimbursement from the State of New
Jersey for such costs. A schedule of such costs incurred to date is attached
hereto as Schedule 13.5. The UPREIT agrees that the Contributors shall have the
right to enforce the obligations of the State to reimburse such costs (provided
that Contributors shall have no right to remove or relocate such sign from its
new location) and that to the extent that any such sums are received by the
Partnership and/or the UPREIT subsequent to the Closing Date, such sums shall be
held in trust for and paid to the Contributors promptly upon receipt.
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SECTION 14. ESCROW AGENT.
14.1 Investment. Escrow Agent shall place the Deposit, if in the form
of cash, in an interest-bearing account with a federally-insured commercial
banking institution selected by Escrow Agent, with such Deposit to be applied as
set forth in this Agreement.
14.2 Protective Provisions. Escrow Agent shall release the Deposit in
accordance with the provisions of this Agreement, or otherwise upon the joint
written instructions of the General Partner and the UPREIT. Escrow Agent shall
have no responsibility to determine the authenticity or validity of any notice,
direction, instruction, instrument, document or other item delivered by either
party, and shall be fully protected in acting in accordance with any joint
written notice, direction, or instruction given hereunder and reasonably
believed to be authentic. In the event of any controversy regarding the
disposition of the Deposit or any interest thereon, Escrow Agent shall not be
required to make any determination regarding such controversy; and in such event
Escrow Agent shall have the right, at any time after the occurrence of a
dispute, to place the Deposit and interest thereon with a court of competent
jurisdiction in connection with the commencement of an interpleader action or
similar proceeding. Escrow Agent shall give written notice of such deposit to
the parties hereto and thereafter, Escrow Agent shall be relieved of all further
obligations and responsibilities hereunder.
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14.3 Liability. The parties acknowledge that Escrow Agent is acting
solely as a stakeholder at their request and for their convenience, that Escrow
Agent shall not be deemed to be the agent of either of the parties, and that
Escrow Agent shall not be liable to either of the parties for any act or
omission on its part unless taken or suffered in bad faith, in willful disregard
of this contract, or involving gross negligence.
14.4 Requirements for Disbursement. Before making any disbursement of
funds from a cash escrow, Escrow Agent shall notify the General Partner and the
UPREIT in writing of its intended action at least five (5) days in advance, and
in the event it shall, within such 5 day period, receive written notice of
objection from a party, Escrow Agent shall take no further action unless
pursuant to joint written instructions of the General Partner and the UPREIT or
pursuant to a court order.
SECTION 15. GENERAL PROVISIONS.
15.1 Survival of Representations and Warranties.
(a) Survival Period. All representations and warranties made by the
parties in this Agreement and in the certificates, documents and other
agreements delivered pursuant hereto shall survive the Closing for a period of
one (1) year; provided, however, that any representations or warranties relating
to the payment of Taxes or realty transfer taxes, or to the filing of returns or
the furnishing of information or cooperation with respect thereto, shall survive
Closing for the applicable limitation period, if longer.
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(b) Security; Limitation of Recourse. For the purpose of securing
to the UPREIT (i) the obligations of Contributors under the indemnities,
warranties and representations under this Agreement which survive Closing and
(ii) the obligations of the Partnership under the indemnities, warranties and
representations under this Agreement which survive the Closing (including, but
not limited to, the representations and warranties of the General Partner on
behalf of the Partnership set forth in Section 4.2 hereof) (the obligations
described in subparagraphs (i) and (ii) being collectively referred to herein as
the "SECURITY OBLIGATIONS"), Contributors shall execute and deliver to the
UPREIT at Closing an Indemnity and Security Agreement in the form of Schedule
15.1(b) hereto, pursuant to which the UPREIT shall be granted perfected liens on
and security interests in a portion of the Units (the "COLLATERAL") to be issued
by the UPREIT under this Agreement (such grant to be made pro-rata by all
Contributors), such Collateral to have a value of One Million Dollars
($1,000,000) (the "SECURITY VALUE") determined as of Closing in accordance with
the provisions of Section 2.2 hereof. Notwithstanding the foregoing, (i)
liability under the Indemnity and Security Agreement for a particular indemnity,
warranty or representation shall extend only for the time corresponding to the
survival period of the underlying indemnity, representation or warranty (if any,
and otherwise within the applicable legal limitation period), (ii) during the
period that the Collateral remains subject to the Indemnity and Security
Agreement, the Collateral shall be availed of before recourse is pursued against
any other assets of a Contributor, and (iii) if the Security Obligation which is
breached is the several obligation of a Contributor, then recourse may be had
only to that portion of the Collateral which has been pledged by the particular
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Contributor (or by the constituent partners of such Contributor), but to the
extent that the Security Obligation which is breached is the obligation of the
Partnership (including, but not limited to, the representations and warranties
of the General Partner on behalf of the Partnership set forth in Section 4.2
hereof), then recourse may be had to the Collateral pledged by all Contributors
(and the constituent partners of the Contributors), pro-rata in accordance with
their former interests in the Partnership. To the extent no claim was
theretofore made on account of the obligations under the Indemnity and Security
Agreement, the Collateral shall be released on the first anniversary of the
Closing Date.
15.2 Notices. All notices or other communications permitted or required
under this Agreement shall be in writing and shall be sufficiently given if and
when hand delivered to the persons set forth below or if sent by documented
overnight delivery service or registered or certified mail, postage prepaid,
return receipt requested, or by telegram, telex or telecopy, receipt
acknowledged, addressed as set forth below or to such other person or persons
and/or at such other address or addresses as shall be furnished in writing by
any party hereto to the others. Any such notice or communication shall be deemed
to have been given as of the date received, in the case of personal delivery, or
on the date shown on the receipt or confirmation therefor in all other cases.
To PREIT or the UPREIT:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Executive Vice President and Secretary
and ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., General Counsel
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With a copy to:
Blank Rome LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
To the Contributors:
-------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
With copies to:
Klehr, Harrison, ▇▇▇▇▇▇, Branzburg & ▇▇▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Day, Esquire
15.3 Authorized Representative. Notwithstanding anything in this
Agreement to the contrary, wherever notice to Contributors is required to be
given or is to be given by Contributors, including notice of any approval or
action, the UPREIT shall be entitled to deal exclusively with the following
representative of Contributors at the above-designated address: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-- without the necessity to make further inquiry or give further notices.
15.4 Access to Information. Between the date of this Agreement and the
Closing Date, PREIT and the UPREIT, on the one hand, and the Contributors, on
the other hand, will give to the other party and its officers, employees,
counsel, accountants and other representatives free and full access to and the
right to inspect, during normal business hours, all of the assets, records,
facilities, properties and Contracts relating to its business as the other party
may reasonably request and as may be relevant to the transactions contemplated
by this Agreement.
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15.5 Public Announcements and other Disclosures. Except as and to the
extent required by Law or by the rules of the New York Stock Exchange, without
the prior written consent of the other party, the Contributors, on the one hand,
and PREIT and the UPREIT, on the other hand, will not, and each will direct its
representatives not to, directly or indirectly, make any public comment,
statement or communication with respect to, or otherwise disclose or permit the
disclosure of any of the terms, conditions or other aspects of the transactions
contemplated hereby; provided, however, that PREIT may issue a press release,
after discussion of the contents thereof with the Contributors, regarding the
transactions contemplated by this Agreement; and further provided that the
parties may each maintain and continue such communications with principals,
partners, lenders, trustees, attorneys, accountants, investment bankers,
consultants and others having a legitimate "need to know" in connection with the
consummation of the transactions contemplated by this Agreement.
15.6 Brokers. The parties hereby represent to each other that they have
not engaged or dealt with any broker in connection with the transaction which is
the subject of this Agreement, other than Preit-▇▇▇▇▇, Inc., and each party
hereby agrees to indemnify, hold harmless and defend the other from and against
all claims, losses, liabilities and expenses, including reasonable attorneys'
fees, arising out of any inaccuracy in the foregoing representation. The General
Partner shall cause the Partnership to pay, at or prior to Closing, the one
percent (1%) commission due to Preit-▇▇▇▇▇, Inc. in connection with this
transaction, if Closing occurs. The provisions of this Section shall survive the
Closing and/or any termination of this Agreement.
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15.7 Entire Agreement. This Agreement, together with the Schedules
hereto, constitutes the entire agreement between the parties hereto with respect
to its subject matter and supersede all prior agreements and understandings with
respect to the subject matter hereof.
15.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original copy of this
Agreement, and all of which, when taken together, shall be deemed to constitute
but one and the same Agreement.
15.9 Governing Law. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the laws of the Commonwealth of
Pennsylvania (and United States federal law, to the extent applicable),
irrespective of the principal place of business, residence or domicile of the
parties hereto, and without giving effect to otherwise applicable principles of
conflicts of laws.
15.10 Section Headings, Captions and Defined Terms. The section
headings and captions contained herein are for reference purposes only and shall
not in any way affect the meaning and interpretation of this Agreement. The
terms defined herein and in any agreement executed in connection herewith
include the plural as well as the singular, and the use of any pronouns includes
the masculine, feminine and neuter. Except as otherwise indicated, all
agreements defined herein refer to the same as from time to time amended or
supplemented or the terms thereof waived or modified in accordance herewith and
therewith.
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15.11 Amendments, Modifications and Waiver. The parties may amend or
modify this Agreement in any respect. Any such amendment or modification shall
be in writing. The waiver by any party of any provision of this Agreement shall
not constitute or operate as a waiver of any other provision hereof, nor shall
any failure to enforce any provision hereof operate as a waiver of such
provision or of any other provision.
15.12 Severability. The invalidity or unenforceability of any
particular provision, or part of any provision, of this Agreement shall not
affect the other provisions or parts hereof, and this Agreement shall be
construed in all respects as if such invalid or unenforceable provisions or
parts were omitted.
15.13 Liability of Trustees, etc. No recourse shall be had for any
obligation of PREIT hereunder, or for any claim based thereon or otherwise in
respect thereof, against any past, present or future trustee, shareholder,
officer or employee of PREIT, whether by virtue of any statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise, all such
liability being expressly waived and released by each other party hereto. No
recourse shall be had for any obligation of Cumberland Mall Management, Inc.
hereunder, or for any obligation of a partnership Contributor hereunder, or for
any claim based thereon or otherwise in respect thereof, against any past,
present or future shareholder, officer or employee of a corporate entity, or
against any limited partner of a partnership entity, whether by virtue of any
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being expressly waived and released by each other
party hereto.
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15.14 No Third Party Beneficiary. No party other than the parties to
this Agreement and their respective successors and permitted assigns and
designees shall be a beneficiary of this Agreement.
15.15 Binding Effect. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns,
provided that no assignment by Contributors shall be binding or effective unless
approved by PREIT and the UPREIT.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, all as of the date first written above.
CUMBERLAND MALL MANAGEMENT, INC., general partner
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
PAN AMERICAN ASSOCIATES, limited partner
By: Pan American Office Investments, L.P., a Pennsylvania limited
partnership, general partner
By: Pan American Office Investments-G.P., Inc., its sole general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
CUMBERLAND MALL INVESTMENT ASSOCIATES, limited partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Partner
PENNSYLVANIA REAL ESTATE INVESTMENT TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (SEAL)
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
PREIT ASSOCIATES, L.P.
By: Pennsylvania Real Estate Investment Trust, its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (SEAL)
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
77