Exhibit 10.4
GUARANTY
THIS GUARANTY dated as of November 20, 2003 executed and delivered by
each of the undersigned and the other Persons from time to time party hereto
pursuant to the execution and delivery of an Accession Agreement in the form of
Annex I hereto (all of the undersigned, together with such other Persons each a
"Guarantor" and collectively, the "Guarantors") in favor of (a) WELLS FARGO
BANK, NATIONAL ASSOCIATION, in its capacity as Agent (the "Agent") for the
Lenders under that certain Credit Agreement dated as of November 20, 2003 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among PREIT Associates, L.P. (the "Borrower"),
Pennsylvania Real Estate Investment Trust (the "Parent"), the financial
institutions party thereto and their assignees under Section 11.5.(c) thereof,
the Agent and the other parties thereto, (b) THE LENDERS and (c) THE SWINGLINE
LENDER.
WHEREAS, pursuant to the Credit Agreement, the Agent and the Lenders
have agreed to make available to the Borrower certain financial accommodations
on the terms and conditions set forth therein;
WHEREAS, the Parent is the sole general partner of the Borrower;
WHEREAS, each other Guarantor is a Subsidiary of the Borrower or the
Parent;
WHEREAS, the Borrower, each Guarantor and the other Loan Parties,
though separate legal entities, are mutually dependent on each other in the
conduct of their respective businesses as an integrated operation and have
determined it to be in their mutual best interests to obtain financing from the
Agent and the Lenders through their collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and
indirect benefits from the Agent and the Lenders making such financial
accommodations available to the Borrower under the Credit Agreement and,
accordingly, each such Guarantor is willing to guarantee certain of the
Borrower's obligations to the Agent and the Lenders on the terms and conditions
contained herein; and
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement and the extension of financial accommodations under the Credit
Agreement, that the Guarantors execute and deliver this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each Guarantor, each Guarantor
agrees as follows:
Section 1. Guaranty. Each Guarantor hereby absolutely, irrevocably and
unconditionally guaranties the due and punctual payment and performance when
due, whether at stated maturity, by acceleration or otherwise, of all of the
following (collectively referred to as the "Guarantied Obligations"): (a) all
indebtedness and obligations owing by the Borrower to any Lender or the Agent
under or in connection with the Credit Agreement and any other Loan Document to
which the Borrower is a party, including without limitation, the repayment of
all principal of the Loans and the payment of all interest, fees, charges,
reasonable attorneys fees and other amounts payable to any Lender or the Agent
thereunder or in connection therewith; (b) any and all extensions, renewals,
modifications, amendments or substitutions of the foregoing; (c) all expenses,
including, without limitation, reasonable attorneys' fees and disbursements,
that are incurred by the Lenders and the Agent in the enforcement of any of the
foregoing or any obligation of such Guarantor hereunder and (d) all other
Obligations.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is
a guaranty of payment, and not of collection, and a debt of each Guarantor for
its own account. Accordingly, the Lenders and the Agent shall not be obligated
or required before enforcing this Guaranty against any Guarantor: (a) to pursue
any right or remedy the Lenders or the Agent may have against any Loan Party or
any other Person or commence any suit or other proceeding against any Loan Party
or any other Person in any court or other tribunal; (b) to make any claim in a
liquidation or bankruptcy of any Loan Party or any other Person; or (c) to make
demand of any Loan Party or any other Person or to enforce or seek to enforce or
realize upon any collateral security held by the Lenders or the Agent which may
secure any of the Guarantied Obligations.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the
Guarantied Obligations will be paid strictly in accordance with the terms of the
documents evidencing the same, regardless of any Applicable Law now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of the
Agent or the Lenders with respect thereto. The liability of each Guarantor under
this Guaranty shall be absolute, irrevocable and unconditional in accordance
with its terms and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever, including without limitation, the
following (whether or not such Guarantor consents thereto or has notice
thereof):
(a)(i) any change in the amount, interest rate or due date or other
term of any of the Guarantied Obligations, (ii) any change in the time, place or
manner of payment of all or any portion of the Guarantied Obligations, (iii) any
amendment or waiver of, or consent to the departure from or other indulgence
with respect to, the Credit Agreement, any other Loan Document, or any other
document or instrument evidencing or relating to any Guarantied Obligations, or
(iv) any waiver, renewal, extension, addition, or supplement to, or deletion
from, or any other action or inaction under or in respect of, the Credit
Agreement, any of the other Loan Documents, or any other documents, instruments
or agreements relating to the Guarantied Obligations or any other instrument or
agreement referred to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;
(b) any lack of validity or enforceability of the Credit Agreement, any
of the other Loan Documents, or any other document, instrument or agreement
referred to therein or evidencing any Guarantied Obligations or any assignment
or transfer of any of the foregoing;
(c) any furnishing to the Agent or the Lenders of any security for the
Guarantied Obligations, or any sale, exchange, release or surrender of, or
realization on, any collateral securing any of the Obligations;
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(d) any settlement or compromise of any of the Guarantied Obligations,
any security therefor, or any liability of any other party with respect to the
Guarantied Obligations, or any subordination of the payment of the Guarantied
Obligations to the payment of any other liability of any Loan Party;
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to such
Loan Party or any other Person, or any action taken with respect to this
Guaranty by any trustee or receiver, or by any court, in any such proceeding;
(f) any invalidity or nonperfection of any security interest or lien
on, or any other impairment of, any collateral securing any of the Guaranteed
Obligations or any failure of the Agent or any other Person to preserve any such
collateral security or any other impairment of any such collateral;
(g) any act or failure to act by any Loan Party or any other Person
which may adversely affect such Guarantor's subrogation rights, if any, against
such Loan Party to recover payments made under this Guaranty;
(h) any application of sums paid by any Loan Party or any other Person
with respect to the liabilities of the Borrower to the Agent or the Lenders,
regardless of what liabilities of the Borrower remain unpaid;
(i) any defect, limitation or insufficiency in the borrowing powers of
the Borrower or in the exercise thereof; or
(j) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, a Guarantor hereunder (other than termination
of this Guaranty as provided in Section 20. hereof).
Section 4. Action with Respect to Guarantied Obligations. The Lenders
and the Agent may, at any time and from time to time, without the consent of, or
notice to, any Guarantor, and without discharging any Guarantor from its
obligations hereunder take any and all actions described in Section 3. and may
otherwise: (a) amend, modify, alter or supplement the terms of any of the
Guarantied Obligations, including, but not limited to, extending or shortening
the time of payment of any of the Guarantied Obligations or changing the
interest rate that may accrue on any of the Guarantied Obligations; (b) amend,
modify, alter or supplement the Credit Agreement or any other Loan Document; (c)
sell, exchange, release or otherwise deal with all, or any part, of any
collateral securing any of the Obligations; (d) release any Loan Party or other
Person liable in any manner for the payment or collection of the Guarantied
Obligations; (e) exercise, or refrain from exercising, any rights against any
Loan Party or any other Person; and (f) apply any sum, by whomsoever paid or
however realized, to the Guarantied Obligations in such order as the Lenders
shall elect.
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Section 5. Representations and Warranties. Each Guarantor hereby makes
to the Agent and the Lenders all of the representations and warranties made by
the Borrower with respect to or in any way relating to such Guarantor in the
Credit Agreement and the other Loan Documents, as if the same were set forth
herein in full.
Section 6. Covenants. Each Guarantor will comply with all covenants
which the Borrower is to cause such Guarantor to comply with under the terms of
the Credit Agreement or any of the other Loan Documents.
Section 7. Waiver. Each Guarantor, to the fullest extent permitted by
Applicable Law, hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing, or omission
or delay to do any other act or thing, which in any manner or to any extent
might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.
Section 8. Inability to Accelerate Loan. If the Agent and/or the
Lenders are prevented under Applicable Law or otherwise from demanding or
accelerating payment of any of the Guarantied Obligations by reason of any
automatic stay or otherwise, the Agent and/or the Lenders shall be entitled to
receive from each Guarantor, upon demand therefor, the sums which otherwise
would have been due had such demand or acceleration occurred.
Section 9. Reinstatement of Guarantied Obligations. If claim is ever
made on the Agent or any Lender for repayment or recovery of any amount or
amounts received in payment or on account of any of the Guarantied Obligations,
and the Agent or such Lender repays all or part of said amount by reason of (a)
any judgment, decree or order of any court or administrative body of competent
jurisdiction, or (b) any settlement or compromise of any such claim effected by
the Agent or such Lender with any such claimant (including the Borrower or a
trustee in bankruptcy for the Borrower), then and in such event each Guarantor
agrees that any such judgment, decree, order, settlement or compromise shall be
binding on it, notwithstanding any revocation hereof or the cancellation of the
Credit Agreement, any of the other Loan Documents, or any other instrument
evidencing any liability of the Borrower, and such Guarantor shall be and remain
liable to the Agent or such Lender for the amounts so repaid or recovered to the
same extent as if such amount had never originally been paid to the Agent or
such Lender.
Section 10. Subrogation. Each Guarantor hereby forever waives to the
fullest extent possible any and all claims such Guarantor may have against the
Borrower arising out of any payment by such Guarantor to the Agent and Lenders
of any of the obligations pursuant to this Guaranty, including, but not limited
to, all such claims of such Guarantor arising out of any right of subrogation,
indemnity, reimbursement, contribution, exoneration, payment or any other claim,
cause of action, right or remedy against the Borrower, whether such claim arises
at law, in equity, or out of any written or oral agreement between or among such
Guarantor, the Borrower or otherwise. The waivers set forth above are intended
by each Guarantor, the Agent and the Lenders to be for the benefit of the
Borrower, and such waivers shall be enforceable by the Borrower, or any of their
successors or assigns, as an absolute defense to any action by such Guarantor
against the Borrower or the assets of the Borrower, which action arises out of
any payment by the Borrower to the Agent or Lenders upon any of these
obligations. The waivers set forth herein may not be revoked by any Guarantor
without the prior written consent of the Agent and the Borrower.
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Section 11. Payments Free and Clear. All sums payable by each Guarantor
hereunder, whether of principal, interest, fees, expenses, premiums or
otherwise, shall be paid in full, without set-off or counterclaim or any
deduction or withholding whatsoever (including any Taxes), and if such Guarantor
is required by Applicable Law or by any Governmental Authority to make any such
deduction or withholding, provided the requirements set forth in Section 3.10 of
the Credit Agreement are satisfied, such Guarantor shall pay to the Agent and
the Lenders such additional amount as will result in the receipt by the Agent
and the Lenders of the full amount payable hereunder had such deduction or
withholding not occurred or been required.
Section 12. Set-off. In addition to any rights now or hereafter granted
under any of the other Loan Documents or Applicable Law and not by way of
limitation of any such rights, each Guarantor hereby authorizes the Agent and
each Lender, at any time or from time to time, during the continuance of any
Event of Default without any prior notice to such Guarantor or to any other
Person, any such notice being hereby expressly waived, but in the case of a
Lender, subject to receipt of the prior written consent of the Agent exercised
in its sole discretion, to set-off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, indebtedness
evidenced by certificates of deposit, whether matured or unmatured) and any
other indebtedness at any time held or owing by the Agent, such Lender or any
affiliate of the Agent or such Lender, to or for the credit or the account of
such Guarantor against and on account of any of the Guarantied Obligations,
although such obligations shall be contingent or unmatured. Each Guarantor
agrees, to the fullest extent permitted by Applicable Law, that any Participant
may exercise rights of setoff or counterclaim and other rights with respect to
its participation as fully as if such Participant were a direct creditor of such
Guarantor in the amount of such participation.
Section 13. Subordination. Each Guarantor hereby expressly covenants
and agrees for the benefit of the Agent and the Lenders that all obligations and
liabilities of the Borrower to such Guarantor of whatever description, including
without limitation, all intercompany receivables of such Guarantor from the
Borrower (collectively, the "Junior Claims") shall be subordinate and junior in
right of payment to all Guarantied Obligations. If an Event of Default shall
have occurred and be continuing, then no Guarantor shall accept any direct or
indirect payment (in cash, property, securities by setoff or otherwise) from the
Borrower on account of or in any manner in respect of any Junior Claim until all
of the Guarantied Obligations have been indefeasibly paid in full.
Section 14. Avoidance Provisions. It is the intent of each Guarantor,
the Agent and the Lenders that in any Proceeding, such Guarantor's maximum
obligation hereunder shall equal, but not exceed, the maximum amount which would
not otherwise cause the obligations of such Guarantor hereunder (or any other
obligations of such Guarantor to the Agent and the Lenders) to be avoidable or
unenforceable against such Guarantor in such Proceeding as a result of
Applicable Law, including without limitation, (a) Section 548 of the Bankruptcy
Code of 1978, as amended (the "Bankruptcy Code") and (b) any state fraudulent
transfer or fraudulent conveyance act or statute applied in such Proceeding,
whether by virtue of Section 544 of the Bankruptcy Code or otherwise. The
Applicable Laws under which the possible avoidance or unenforceability of the
obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Agent and the Lenders) shall be determined in any such
Proceeding are referred to as the "Avoidance Provisions". Accordingly, to the
extent that the obligations of any Guarantor hereunder would otherwise be
subject to avoidance under the Avoidance Provisions, the maximum Guarantied
Obligations for which such Guarantor shall be liable hereunder shall be reduced
to that amount which, as of the time any of the Guarantied Obligations are
deemed to have been incurred under the Avoidance Provisions, would not cause the
obligations of any Guarantor hereunder (or any other obligations of such
Guarantor to the Agent and the Lenders), to be subject to avoidance under the
Avoidance Provisions. This Section is intended solely to preserve the rights of
the Agent and the Lenders hereunder to the maximum extent that would not cause
the obligations of any Guarantor hereunder to be subject to avoidance under the
Avoidance Provisions, and no Guarantor or any other Person shall have any right
or claim under this Section as against the Agent and the Lenders that would not
otherwise be available to such Person under the Avoidance Provisions.
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Section 15. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition of the Loan
Parties, and of all other circumstances bearing upon the risk of nonpayment of
any of the Guarantied Obligations and the nature, scope and extent of the risks
that such Guarantor assumes and incurs hereunder, and agrees that neither the
Agent nor any Lender shall have any duty whatsoever to advise any Guarantor of
information regarding such circumstances or risks.
Section 16. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
COMMONWEALTH
SECTION 17. LITIGATION; JURISDICTION; OTHER MATTERS; WAIVERS.
(a) EACH GUARANTOR, AND EACH OF THE AGENT AND THE LENDERS BY ACCEPTING
THE BENEFITS HEREOF, ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR
AMONG ANY GUARANTOR, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT
AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE
PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE
LENDERS, THE AGENT AND EACH GUARANTOR HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN
WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR IN CONNECTION WITH ANY COLLATERAL OR
ANY LIEN OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER
BETWEEN OR AMONG ANY GUARANTOR, THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR
NATURE.
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(b) EACH GUARANTOR, THE AGENT, AND EACH LENDER BY ACEPTING THE BENFITS
HEREOF, HEREBY AGREES THAT THE FEDERAL DISTRICT COURT OF THE EASTERN DISTRICT OF
PENNSYLVANIA OR, AT THE OPTION OF THE AGENT, ANY STATE COURT LOCATED IN
PHILADELPHIA COUNTY, PENNSYLVANIA, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE
ANY CLAIMS OR DISPUTES BETWEEN OR AMONG ANY GUARANTOR, THE AGENT, OR ANY OF THE
LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS GUARANTY, OR ANY OTHER LOAN
DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM OR THE COLLATERAL. EACH
GUARANTOR AND EACH OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS.
(c) EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT
OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH
AGREES NOT TO PLEAD OR CLAIM THE SAME.
(d) THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED
TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY LENDER OR THE
ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN
ANY OTHER APPROPRIATE JURISDICTION.
(e) THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL AND
WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE
THE PAYMENT OF THE LOANS AND ALL OTHER OBLIGATIONS AND THE TERMINATION OF THIS
GUARANTY.
Section 18. Loan Accounts. The Agent and each Lender may maintain books
and accounts setting forth the amounts of principal, interest and other sums
paid and payable with respect to the Guarantied Obligations, and in the case of
any dispute relating to any of the Guarantied Obligations or otherwise, the
entries in such books and accounts shall constitute prima facie evidence of the
outstanding amount of such Guarantied Obligations and the amounts paid and
payable with respect thereto absent manifest error. The failure of the Agent or
any Lender to maintain such books and accounts shall not in any way relieve or
discharge any Guarantor of any of its obligations hereunder.
Section 19. Waiver of Remedies. No delay or failure on the part of the
Agent or any Lender in the exercise of any right or remedy it may have against
any Guarantor hereunder or otherwise shall operate as a waiver thereof, and no
single or partial exercise by the Agent or any Lender of any such right or
remedy shall preclude other or further exercise thereof or the exercise of any
other such right or remedy.
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Section 20. Termination. This Guaranty shall remain in full force and
effect until the indefeasible payment in full of the Obligations and the
termination or cancellation of the Credit Agreement.
Section 21. Successors and Assigns. Each reference herein to the Agent
or the Lenders shall be deemed to include such Person's respective successors
and assigns (including, but not limited to, any holder of the Guarantied
Obligations) in whose favor the provisions of this Guaranty also shall inure,
and each reference herein to each Guarantor shall be deemed to include such
Guarantor's successors and assigns, upon whom this Guaranty also shall be
binding. The Lenders may, in accordance with the applicable provisions of the
Credit Agreement, assign, transfer or sell any Guarantied Obligations, or grant
or sell participations in any Guarantied Obligation, to any Person without the
consent of, or notice to, any Guarantor and without releasing, discharging or
modifying any Guarantor's obligations hereunder. Each Guarantor hereby consents
to the delivery by the Agent or any Lender to any Assignee or Participant (or
any prospective Assignee or Participant) of any financial or other information
regarding any Loan Party. No Guarantor may assign or transfer its obligations
hereunder to any Person without the prior written consent of all Lenders and any
such assignment or other transfer to which all of the Lenders have not so
consented shall by null and void.
Section 22. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE
GUARANTORS HEREUNDER SHALL BE JOINT AND SEVERAL, AND ACCORDINGLY, EACH GUARANTOR
CONFIRMS THAT IT IS LIABLE FOR THE FULL AMOUNT OF THE "GUARANTIED OBLIGATIONS"
AND ALL OF THE OBLIGATIONS AND LIABILITIES OF EACH OF THE OTHER GUARANTORS
HEREUNDER.
Section 23. Amendments. This Guaranty may not be amended except in
writing signed by the Agent and each Guarantor.
Section 24. Payments. All payments to be made by any Guarantor pursuant
to this Guaranty shall be made in Dollars, in immediately available funds to the
Agent at its Principal Office, not later than 11:00 a.m., on the date one
Business Day after demand therefor.
Section 25. Notices. All notices, requests and other communications
hereunder shall be in writing (including facsimile transmission or similar
writing) and shall be given (a) to each Guarantor at its address set forth below
its signature hereto, (b) to the Agent or any Lender at its address for notices
provided for in the Credit Agreement, or (c) as to each such party at such other
address as such party shall designate in a written notice to the other parties.
Each such notice, request or other communication shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered, when delivered; provided, however, that any notice of a change of
address for notices shall not be effective until received.
Section 26. Severability. In case any provision of this Guaranty shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
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Section 27. Headings. Section headings used in this Guaranty are for
convenience only and shall not affect the construction of this Guaranty.
Section 28. Limitation of Liability. Neither the Agent, the Swingline
Lender, any Lender, nor any affiliate, officer, director, employee, attorney, or
agent of the Agent, the Swingline Lender or any Lender, shall have any liability
with respect to, and each Guarantor hereby waives, releases, and agrees not to
sue any of them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by a Guarantor in connection with,
arising out of, or in any way related to, this Guaranty or any of the other Loan
Documents, or any of the transactions contemplated by this Guaranty, the Credit
Agreement or any of the other Loan Documents. Each Guarantor hereby waives,
releases, and agrees not to sue the Agent or any Lender or any of the Agent's or
any Lender's affiliates, officers, directors, employees, attorneys, or agents
for punitive damages in respect of any claim in connection with, arising out of,
or in any way related to, this Guaranty, the Credit Agreement or any of the
other Loan Documents, or any of the transactions contemplated by the Credit
Agreement or financed thereby. Notwithstanding anything in this Section to the
contrary, no Defaulting Lender shall be entitled to claim any of the benefits of
this Section.
Section 29. Definitions. (a) For the purposes of this Guaranty:
"Proceeding" means any of the following: (i) a voluntary or involuntary
case concerning any Guarantor shall be commenced under the Bankruptcy Code of
1978, as amended; (ii) a custodian (as defined in such Bankruptcy Code or any
other applicable bankruptcy laws) is appointed for, or takes charge of, all or
any substantial part of the property of any Guarantor; (iii) any other
proceeding under any Applicable Law, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up or composition for adjustment
of debts, whether now or hereafter in effect, is commenced relating to any
Guarantor; (iv) any Guarantor is adjudicated insolvent or bankrupt; (v) any
order of relief or other order approving any such case or proceeding is entered
by a court of competent jurisdiction; (vi) any Guarantor makes a general
assignment for the benefit of creditors; (vii) any Guarantor shall fail to pay,
or shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; (viii) any Guarantor shall call a meeting of its
creditors with a view to arranging a composition or adjustment of its debts;
(ix) any Guarantor shall by any act or failure to act indicate its consent to,
approval of or acquiescence in any of the foregoing; or (x) any corporate action
shall be taken by any Guarantor for the purpose of effecting any of the
foregoing.
(b) Terms not otherwise defined herein are used herein with the
respective meanings given them in the Credit Agreement.
[Signatures on Next Page]
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IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Guaranty as of the date and year first written above.
PENNSYLVANIA REAL ESTATE INVESTMENT TRUST
By: /s/ Bruce Goldman
-----------------------------------
Name: Bruce Goldman
Title: Executive Vice President
PREIT-RUBIN, INC.
RUBIN II, INC.
PREIT-RUBIN OP, INC.
CROWN AMERICAN GC INC.
CROWN AMERICAN VENTURES, INC.
CROWN LYCOMING SERVICES ASSOCIATES
CROWN AMERICAN SERVICES CORPORATION
By: /s/ Bruce Goldman
------------------------------------
Name: Bruce Goldman
Title: Executive Vice President
PR SPRINGFIELD ASSOCIATES, L.P.
By: PR Springfield Trust, by its duly
authorized Trustee
By: /s/ Jeffrey A. Linn
---------------------------
Name: Jeffrey A. Linn
Title: Trustee
PR SPRINGFIELD TRUST, by its duly authorized Trustee
By: /s/ Jeffrey A. Linn
---------------------------
Name: Jeffrey A. Linn
Title: Trustee
[Signatures Continue on Next Page]
[Signature Page to Guaranty dated November 20, 2003]
PR CHRISTIANA LLC PR GALLERY I LIMITED PARTNERSHIP
By: PREIT Associates, L.P., sole member By: PR Gallery I LLC, sole general partner
JACKSONVILLE ASSOCIATES By: PREIT Associates, L.P., sole member
By: PR South Blanding LLC, general partner PR GALLERY I LLC
By: PREIT Associates, L.P., sole member By: PREIT Associates, L.P., sole member
PR SOUTH BLANDING LLC PR PLYMOUTH MEETING LIMITED PARTNERSHIP
By: PREIT Associates, L.P., sole member By: PR Plymouth Meeting LLC, sole general
PR INTERSTATE CONTAINER LLC Partner
By: PREIT Associates, L.P., sole member By: PREIT Associates, L.P., sole member
PR 8000 NATIONAL HIGHWAY, L.P. PR PLYMOUTH MEETING LLC
By: PR 8000 National Highway LLC, sole By: PREIT Associates, L.P., sole member
general partner PR EXTON LIMITED PARTNERSHIP
By: PREIT Associates, L.P., sole member By: PR Exton LLC, sole general partner
PR 8000 NATIONAL HIGHWAY LLC By: PREIT Associates, L.P., sole member
By: PREIT Associates, L.P., sole member PR EXTON LLC
PR 8000 AIRPORT HIGHWAY, L.P. By: PREIT Associates, L.P., sole member
By: PR 8000 Airport Highway LLC, sole PR MOORESTOWN LIMITED PARTNERSHIP
general partner By: PR Moorestown LLC, sole general partner
By: PREIT Associates, L.P., sole member By: PREIT Associates, L.P., sole member
PR 8000 AIRPORT HIGHWAY LLC PR MOORESTOWN LLC
By: PREIT Associates, L.P., sole member By: PREIT Associates, L.P., sole member
ROOSEVELT II ASSOCIATES, L.P. PR ECHELON LIMITED PARTNERSHIP
By: PR Northeast LLC, sole general partner By: PR Echelon LLC, sole general partner
By: PREIT Associates, L.P., sole member By: PREIT Associates, L.P., sole member
PR FESTIVAL LIMITED PARTNERSHIP PR ECHELON LLC
By: PR Festival LLC, sole general partner By: PREIT Associates, L.P., sole member
By: PREIT Associates, L.P., sole member PR NEW CASTLE LLC
PR FESTIVAL LLC By: PREIT Associates, L.P., sole member
By: PREIT Associates, L.P., sole member PLYMOUTH GROUND ASSOCIATES LP
PR FLORENCE LLC By: Plymouth Ground Associates LLC, sole general
By: PREIT Associates, L.P., sole member By: PREIT Associates, L.P., sole member
PR TITUS LIMITED PARTNERSHIP PLYMOUTH GROUND ASSOCIATES LLC
By: PR Titus LLC, sole member By: PREIT Associates, L.P., sole member
By: PREIT Associates, L.P., sole member WG PARK, L.P.
PR TITUS LLC By: WG Park General, L.P., general partner
By: PREIT Associates, L.P., sole member By: WG Holdings of Pennsylvania, L.L.C.,
PR WARRINGTON LIMITED PARTNERSHIP general partner
By: PR Warrington LLC, sole general partner By: WG Holdings, L.P., sole member
By: PREIT Associates, L.P., sole member By: PRWG General, LLC, general
PR WARRINGTON LLC partner
By: PREIT Associates, L.P., sole member By: PREIT Associates, L.P., sole member
PRGL PAXTON LIMITED PARTNERSHIP
By: PR Paxton LLC, sole general partner
By: PREIT Associates, L.P., sole member
PR PAXTON LLC
By: PREIT Associates, L.P., sole member
By: Pennsylvania Real Estate Investment
Trust, sole general partner
By: /s/ Bruce Goldman
------------------------------
Name: Bruce Goldman
Title: Executive Vice President
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WG PARK GENERAL, L.P. PR NEWGARDEN, L.P.
By: WG Holdings of Pennsylvania, L.L.C., By: PR New Garden LLC, sole general
general partner partner
By: WG Holdings, L.P., sole member By: PREIT Associates, L.P., sole member
By: PRWG General, LLC, general PR NEW GARDEN LLC
partner By: PREIT Associates, L.P., sole member
By: PREIT Associates, L.P., sole member PR MAGNOLIA LLC
WG HOLDINGS OF PENNSYLVANIA, L.L.C. By: PREIT Associates, L.P., sole member
By: WG Holdings, L.P., sole member PR WESTGATE LIMITED PARTNERSHIP
By: PRWG General, LLC, general partner By: PR Westgate LLC, sole general
By: PREIT Associates, L.P., sole member Partner
WG HOLDINGS, L.P. By: PREIT Associates, L.P., sole member
By: PRWG General, LLC, general partner PR WESTGATE LLC
By: PREIT Associates, L.P., general partner By: PREIT Associates, L.P., sole member
PRWG GENERAL, LLC PR WIREGRASS COMMONS LLC
By: PREIT Associates, L.P., sole member By: PREIT Associates, L.P., sole member
WG PARK LIMITED, L.P. PR SCHUYLKILL LIMITED PARTNERSHIP
By: WG Holdings of Pennsylvania, L.L.C., general partner By: PR Schuylkill LLC, sole general partner
By: WG Holdings, L.P., sole member By: PREIT Associates, L.P., sole member
By: PRWG General, LLC, general partner PR SCHUYLKILL LLC
By: PREIT Associates, L.P., sole member By: PREIT Associates, L.P., sole member
PR NORTHEAST LIMITED PARTNERSHIP PR CROSSROAD I LLC
By: PR Northeast LLC, sole general partner By: PREIT Associates, L.P., sole member
By: PREIT Associates, L.P., sole member PR CROSSROADS II LLC
PR NORTHEAST LLC By: PREIT Associates, L.P., sole member
By: PREIT Associates, L.P., sole member PR SHENANGO VALLEY LIMITED PARTNERSHIP
ROOSEVELT ASSOCIATES, L.P. By: PR Shenango Valley LLC
By: PR Northeast LLC, sole general partner By: PREIT Associates, L.P., sole member
By: PREIT Associates, L.P., sole member PR SHENANGO VALLEY LLC
PR BVM LLC By: PREIT Associates, L.P., sole member
By: PREIT Associates, L.P., sole member PR BRADLEY SQUARE LLC
PR AEKI PLYMOUTH L.P. By: PREIT Associates, L.P., sole member
By: PR AEKI Plymouth LLC, sole general partner PR MT. BERRY SQUARE LLC
PR AEKI PLYMOUTH LLC By: PREIT Associates, L.P., sole member
By: PREIT Associates, L.P., sole member PR MARTINSBURG LLC
PREIT SERVICES LLC By: PREIT Associates, L.P., sole member
By: PREIT Associates, L.P., sole member PR WEST MANCHESTER LIMITED PARTNERSHIP
PR VALLEY LIMITED PARTNERSHIP By: PR West Manchester LLC
By: PR Valley LLC, sole general partner By: PREIT Associates, L.P., sole member
By: PREIT Associates, L.P., sole member PR WEST MANCHESTER LLC
By: PREIT Associates, L.P., sole member
PR VALLEY LLC
By: PREIT Associates, L.P., sole member
By: Pennsylvania Real Estate Investment
Trust, sole general partner
By: /s/ Bruce Goldman
------------------------------
Name: Bruce Goldman
Title: Executive Vice President
ANNEX I
FORM OF ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT dated as of ____________, ____, executed and
delivered by ______________________, a _____________ (the "New Guarantor") in
favor of (a) WELLS FARGO BANK, NATIONAL ASSOCIATION, in its capacity as Agent
(the "Agent") for the Lenders under that certain Credit Agreement dated as of
November 20, 2003 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"), by and among PREIT Associates, L.P. (the
"Borrower"), Pennsylvania Real Estate Investment Trust (the "Parent"), the
financial institutions party thereto and their assignees under Section 11.5.(c)
thereof, the Agent and the other parties thereto and (b) the Lender.
WHEREAS, pursuant to the Credit Agreement, the Agent and the Lenders
have agreed to make available to the Borrower certain financial accommodations
on the terms and conditions set forth in the Credit Agreement;
WHEREAS, the New Guarantor is a Subsidiary of the Borrower or the
Parent;
WHEREAS, the Borrowers, the New Guarantor, the other Subsidiaries of
the Borrower and the Parent, though separate legal entities, are mutually
dependent on each other in the conduct of their respective businesses as an
integrated operation and have determined it to be in their mutual best interests
to obtain financing from the Agent and the Lenders through their collective
efforts;
WHEREAS, the New Guarantor acknowledges that it will receive direct and
indirect benefits from the Agent and the Lenders making such financial
accommodations available to the Borrower under the Credit Agreement and,
accordingly, the New Guarantor is willing to guarantee certain of the Borrower's
obligations to the Agent and the Lenders on the terms and conditions contained
herein; and
WHEREAS, the New Guarantor's execution and delivery of this Agreement
is a condition to the Agent and the Lenders continuing to make such financial
accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the New Guarantor, the New
Guarantor agrees as follows:
Section 1. Accession to Guaranty. The New Guarantor hereby agrees that
it is a "Guarantor" under that certain Guaranty dated as of November 20, 2003
(the "Guaranty"), made by the Parent and each Subsidiary a party thereto in
favor of the Agent and the Lenders and assumes all obligations of a "Guarantor"
thereunder, all as if the New Guarantor had been an original signatory to the
Guaranty. Without limiting the generality of the foregoing, the New Guarantor
hereby:
(a) irrevocably and unconditionally guarantees the due and punctual
payment and performance when due, whether at stated maturity, by acceleration or
otherwise, of all Guarantied Obligations;
(b) makes to the Agent and the Lenders as of the date hereof each of
the representations and warranties contained in Section 5 of the Guaranty and
agrees to be bound by each of the covenants contained in Section 6 of the
Guaranty; and
(c) consents and agrees to each provision set forth in the Guaranty.
SECTION 2. GOVERNING LAW. THIS ACCESSION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN
SUCH COMMONWEALTH.
Section 3. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have their respective defined meanings given them in the
Credit Agreement.
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IN WITNESS WHEREOF, the New Guarantor has caused this Accession
Agreement to be duly executed and delivered under seal by its duly authorized
officers as of the date first written above.
[NEW GUARANTOR]
By:_________________________________________
Name:____________________________________
Title:___________________________________
(CORPORATE SEAL)
Address for Notices:
_________________________
_________________________
Attention: _____________
Telecopier: _____________
Telephone: _____________
Accepted:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Agent
By: _______________________
Name:__________________
Title:_________________