Exhibit 10.6
This Agreement between PREIT Services, LLC, Philadelphia, Pennsylvania, herein
called the "Client" or "PREIT" and Crown American Hotels Company, Pasquerilla
Plaza, Johnstown, Pennsylvania, herein called "C.A.H.C." is made effective as of
the 20th day of November, 2003.
Client desires the Information Technology (IT) services described herein and
both parties agree in respect to the provision of the services by C.A.H.C. and
to the payment for those services by the Client, as set forth below:
Purpose
This agreement establishes the level of technical support provided through the
C.A.H.C. IT department to the Client. The objective of the agreement is to
provide a mutual understanding of support expectations for both parties.
Scope of Agreement
The Client engages C.A.H.C. to provide information technology support which
includes but is not limited to operating and maintaining networking,
telecommunications, hardware and applications (hereinafter sometimes "IT " or
"Information Technology") and the equipment, machinery, devices, software and
peripherals that serve as components of that Information Technology, located at
and for so long as they remain at, other than with respect to remote
connectivity, Pasquerilla Plaza, Johnstown, Pa 15901 ("Equipment").
Specifically, C.A.H.C. will work with the Client to provide IT support of the
Equipment including, but not limited to performing the conversion of the former
Crown American Properties L.P. corporate and property IT operations and systems
to the Client's data center. Such IT support shall include:
Networking
>> Account management and resource allocation
o Create, modify, or deactivate domain accounts or exchange accounts.
o Create, modify, or deactivate shares, groups, distribution lists, and
public folders.
o Assign file shares.
o Assign share permissions
o Create, modify, or deactivate print queues.
o Migrate user accounts, groups and share objects to new/established
servers
>> Infrastructure
o Maintain Wide Area Network (WAN).
o Maintain existing local-area-network (LAN).
o Maintain point to point connection with Client
o Maintain Internet protocol (IP) addressing.
o Perform routine Network Maintenance
o Maintain Firewall.
o Maintain phone system.
o Maintain phone lines and cabling.
o Maintain incoming and outgoing mail server software.
>> Security
o Secure the physical plants; i.e., server rooms.
o Provide anti-virus desktop and server support.
Hardware/Server Administration
>> Hardware
o Troubleshoot hardware (server, workstation, cabling, ETC) failures
o Replacement of failed components at Client's expense if not covered by
warranty or maintenance agreements.
>> Server Administration
o Monitor hardware resources, software resources, web servers, databases
and supported applications; and analyze performance metrics collected
from access and error logs and other technical diagnostics.
o Perform scheduled maintenance.
o Install OS, service packs, hot fixes, security, other server firmware
updates, hardware, and/or hardware components as requested by Client
o Administer and maintain the system software for Microsoft SQL Servers.
o Add, modify, or delete users and groups as requested by Client.
o Change default property values and create new properties for any system
object as requested by Client.
o Maintain access and error logs.
o Run activity reports.
o Create and delete databases as requested by Client.
o Backup and restore databases.
>> Workstation Administration
o Installation, configuration, and troubleshooting
|X| Window 2000 and Windows XP workstation and printers
|X| Virus protection software
|X| Microsoft office products and other desktop applications
Application Support
With respect to commercially available software or applications not
developed by C.A.H.C. or its affiliates, if support of such applications or
software proves to be beyond the capabilities of C.A.H.C's personnel as
determined by the Client's director of Information Technology and C.A.H.C.'s
Vice President of Information Technology, a third party may be engaged with
written permission of Client at Client's expense. In no event, however, may
C.A.H.C. engage a third party or incur any other expenses chargeable to Client
without Client's express, written approval. C.A.H.C. shall supply all existing
documentation to Client necessary to use the Information Technology effectively.
C.A.H.C. hereby grants to Client and its affiliates, permission to duplicate all
printed documentation for Client's or its affiliates' internal use.
"Documentation" shall mean all materials, specifications, technical manuals,
user manuals, flow diagrams, file descriptions and other written or electronic
information that pertains to the Information Technology in connection with the
IT support in C.A.H.C.'s possession or control.
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C.A.H.C. shall at all times ensure that its personnel are properly
trained in the operation and use of the existing applications, software,
hardware, peripherals and all related IT and Equipment and will designate a
person properly trained in and knowledgeable about the use of such IT and
Equipment to serve as PREIT's primary contact with C.A.H.C. for the services
hereunder. C.A.H.C. shall devote such personnel as designated in Exhibit A, for
so long as such personnel are employees of C.A.H.C., to rendering the IT support
service and such resources as PREIT reasonably requests as necessary to the
successful and timely support of the IT and Equipment consistent with the levels
of support provided immediately prior to the merger of Crown American Realty
Trust into and with PREIT and in any event in a professional manner consistent
with industry standards reasonably applicable to such services.
During the term of this agreement, C.A.H.C. shall provide and
communicate to the Client all technical assistance reasonably requested for the
use and operation of the IT and Equipment.
C.A.H.C. shall provide on-the-job technical instruction to Client's
designated employees to have them obtain and/or maintain the level of competence
and experience consistent with the levels provided immediately prior to the
merger of Crown American Realty Trust into and with PREIT, and in any event in a
professional manner consistent with industry standards reasonably applicable to
such services, to use and operate the IT and Equipment, as reasonably requested
by PREIT during the term of this agreement. Such instruction shall be without
additional cost to PREIT.
C.A.H.C. shall provide IT support services for the following:
>> Applications and products supported
- ------------------------------------------ --------------------------------- --------------------------------
Description Software Title/C.A.H.C Platform
- ------------------------------------------ --------------------------------- --------------------------------
Core Accounting and
Property Management, job
costing
- ------------------------------------------ --------------------------------- --------------------------------
(GL, AP, AR, CM) - FR,DR CTI - CTI Limited AS/400
- ------------------------------------------ --------------------------------- --------------------------------
Fixed Assets FAS - Best Software Client/Server, SQL
Database
- ------------------------------------------ --------------------------------- --------------------------------
Desktop Productivity Microsoft Office XP
- ------------------------------------------ --------------------------------- --------------------------------
Project Management Project - Microsoft
- ------------------------------------------ --------------------------------- --------------------------------
Project Management Timberline Client/Server, SQL
- ------------------------------------------ --------------------------------- --------------------------------
CADD Microstation J/V8 -
Bently Software
- ------------------------------------------ --------------------------------- --------------------------------
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- ------------------------------------------ --------------------------------- --------------------------------
Description Software Title/C.A.H.C Platform
- ------------------------------------------ --------------------------------- --------------------------------
Omega Gerber - Print on vinyl Windows XP
omega
- ------------------------------------------ --------------------------------- --------------------------------
Forecasting and Modeling Argus 10.0 Project
- ------------------------------------------ --------------------------------- --------------------------------
Check Reconciliation Pinnacle
- ------------------------------------------ --------------------------------- --------------------------------
General Liability Reporting Frank Gates ALGL Gates
2000
- ------------------------------------------ --------------------------------- --------------------------------
Sales Force Automation Sales Logix Client/Server
- ------------------------------------------ --------------------------------- --------------------------------
SEC Reporting Edgar Software
- ------------------------------------------ --------------------------------- --------------------------------
Option Tracking CMS
- ------------------------------------------ --------------------------------- --------------------------------
Automated Mall Sale Input
- ------------------------------------------ --------------------------------- --------------------------------
Antique Mall POS Marketware Software
written by Dymond
Enterprises
- ------------------------------------------ --------------------------------- --------------------------------
Convenience Centers QuickSell 2000 and
PCCharge Payment Server
- ------------------------------------------ --------------------------------- --------------------------------
Document Mgmt & Imaging Application Extender 4.5 - Client/Server, SQL
Legato Software
- ------------------------------------------ --------------------------------- --------------------------------
Internal Custom Applications
(User Software)
- ------------------------------------------ --------------------------------- --------------------------------
Payroll Custom AS/400
- ------------------------------------------ --------------------------------- --------------------------------
AR - Promotional and Custom AS/400
Temporary (specialty leasing)
- ------------------------------------------ --------------------------------- --------------------------------
Utility Billing Custom AS/400
- ------------------------------------------ --------------------------------- --------------------------------
Check Reconciliation Custom AS/400
- ------------------------------------------ --------------------------------- --------------------------------
Sales Reports Custom AS/400
- ------------------------------------------ --------------------------------- --------------------------------
Prepaid Tax/Insurance Custom AS/400
- ------------------------------------------ --------------------------------- --------------------------------
Delinquency Custom AS/400
- ------------------------------------------ --------------------------------- --------------------------------
Accident Reporting Custom AS/400
- ------------------------------------------ --------------------------------- --------------------------------
Purchase Orders Custom AS/400
- ------------------------------------------ --------------------------------- --------------------------------
Office Requisition Custom AS/400
- ------------------------------------------ --------------------------------- --------------------------------
ACH Generation - HR/Payroll Custom AS/400
- ------------------------------------------ --------------------------------- --------------------------------
Store Open/Closing Custom AS/400
- ------------------------------------------ --------------------------------- --------------------------------
Leased/Owned Equipment Custom AS/400
- ------------------------------------------ --------------------------------- --------------------------------
Specialty Leasing Contract Custom ASP/SQL
Application
- ------------------------------------------ --------------------------------- --------------------------------
Permanent Lease Tracking Custom VB/ASP/SQL
- ------------------------------------------ --------------------------------- --------------------------------
Equipment Inventory Custom ASP/DB2
- ------------------------------------------ --------------------------------- --------------------------------
Expense Report Application Custom ASP/SQL
- ------------------------------------------ --------------------------------- --------------------------------
Ancillary Income Custom ASP/SQL
- ------------------------------------------ --------------------------------- --------------------------------
Lock Box Application Custom ASP/SQL
- ------------------------------------------ --------------------------------- --------------------------------
Survey Application Custom ASP/SQL
- ------------------------------------------ --------------------------------- --------------------------------
Intranet Custom ASP/SQL
- ------------------------------------------ --------------------------------- --------------------------------
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- ------------------------------------------ --------------------------------- --------------------------------
Description Software Title/C.A.H.C Platform
- ------------------------------------------ --------------------------------- --------------------------------
Gift link 3rd party Gift Custom VB/ASP
Certificate Recon
- ------------------------------------------ --------------------------------- --------------------------------
Retail Tenant Directory 3rd Party and custom ASP
interface
- ------------------------------------------ --------------------------------- --------------------------------
Web site Customer IIS
- ------------------------------------------ --------------------------------- --------------------------------
3rd Party Applications
(System Software)
- ------------------------------------------ --------------------------------- --------------------------------
AS/400 OS400 V5R1M0 AS/400
- ------------------------------------------ --------------------------------- --------------------------------
Server OS Software W2K - SP2 INTEL
- ------------------------------------------ --------------------------------- --------------------------------
Server OS Software WINNT 4 SP6a (128)
- ------------------------------------------ --------------------------------- --------------------------------
W2K - SP2
- ------------------------------------------ --------------------------------- --------------------------------
Email Software Exchange 2000 - SP3 INTEL
- ------------------------------------------ --------------------------------- --------------------------------
Email Software Exchange 5.5 - SP4 INTEL
- ------------------------------------------ --------------------------------- --------------------------------
Database Software SQL Server 7.0 & 2000 INTEL
- ------------------------------------------ --------------------------------- --------------------------------
Firewall/Proxy ISA Server 3.0, Proxy 2.0 INTEL
- ------------------------------------------ --------------------------------- --------------------------------
Web Services IIS 4.0/5.0 INTEL
- ------------------------------------------ --------------------------------- --------------------------------
Web Services IIS 5.0 INTEL
- ------------------------------------------ --------------------------------- --------------------------------
Virus Software Network Associates EPO INTEL
2.5
- ------------------------------------------ --------------------------------- --------------------------------
SPAM Filtering Mail Essentials INTEL
- ------------------------------------------ --------------------------------- --------------------------------
Backup Software Veritas Netbackup 4.5GA INTEL
- ------------------------------------------ --------------------------------- --------------------------------
Backup Software Veritas Backup Exec 8.60 INTEL
- ------------------------------------------ --------------------------------- --------------------------------
Remote Control Software pcAnywhere 8.0-10.0 INTEL
- ------------------------------------------ --------------------------------- --------------------------------
>> Software maintenance
o Modify Client requested applications at the written request of Client
(Custom Applications and modifications of CTI data only)
o Assist with end-user issues
o Troubleshoot and correct software defects affecting software listed in
the preceding table, provided that C.A.H.C. shall not be required to
modify or alter code or programming of proprietary third party software
>> Backup
o Perform weekly full and daily differential data backup of data on the
AS/400.
o Perform weekly full and daily differential data backup of all Windows
servers.
o Secure backup media.
o Perform data restores in case of data loss or corruptions.
o Best efforts will be made, but from time to time, mechanical, technical
or media failures may occur that could result in an interrupted Backup
schedule
>> Corporate Web Site
o Host Web applications complying with the standard network configuration
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o Maintain Microsoft Internet Information Server (IIS) web security
configuration and settings.
o Maintain access and error logs.
Conversion
>> Perform conversion tasks as assigned by Client
>> Provide and transfer data files, documentation, and reports for system
conversions
>> Participate in conversion validation
>> Generate 1099s
>> Produce W-2s.
>> Perform application modifications on custom applications and modifications to
CTI data only as requested by Client
Management Support
>> Maintain inventory of all equipment and licenses.
>> Manage day to day operations
>> Project Manage conversion tasks
>> Provide operations reporting to Client
Policies and Procedures
Hours of Operation
The standard hours of operations will be 8:00am to 5:00pm Monday through Friday
excepting legal holidays. C.A.H.C. shall use reasonable diligence in addressing
Client's IT support needs outside of the standard hours of operation, with
C.A.H.C. acknowledging that a Severity 1 problem may require continuous IT
support outside of the standard hours of operations. Additional access to IT
support outside of the standard hours of operation, in excess of 48 hours per
week for any individual listed in Exhibit A, will be billed to the Client on an
as requested basis based on the hourly overtime rates for the personnel listed
in Exhibit A, based upon a 40 hour work week for such personnel.
Call Management Process
A problem-ticket system provided by Client will be used by all support team
levels (where approval and technical access has been granted) to record and
track all problem reports, inquires, or other types of calls received by Level 1
support. This provides the ability to produce metrics with regard to this
agreement. C.A.H.C. shall be responsible for routing all requests for conversion
related tasks to the appropriate C.A.H.C. application specialist.
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Levels of Support
There are three levels of support provided for under this agreement. These
levels, which are integrated into the support process, are defined below. If
C.A.H.C. requires assistance from the Client in fulfilling C.A.H.C.'s
obligations under this agreement, C.A.H.C. should follow the same procedures as
described below, utilizing the Client's help desk and appropriate programming
resources.
o Level 1--This is support provided by the appropriate help desk when it
receives the Support Request from their Client. This represents generalist
support. If this level of support cannot resolve the problem, the Support
Request is passed to Level 2 support, which is the infrastructure support
specialists.
o Level 2--This is support provided by an infrastructure support or subject
matter specialist. This level of support does not perform code
modifications, if required to resolve the problem. Operational issues will
be resolved at this level. If resolution requires code modification, the
Support Request is passed to Level 3 support.
o Level 3--This is support provided by an application support specialist.
This level of support does perform code modifications if required to
resolve the problem (Internal custom applications only). This level of
support will interact directly with the Client's application expert for
conversion tasks.
Acceptable Response Time
The following characteristics are used to identify the severity of a problem
report:
o Business and financial exposure
o Work outage
o Number of clients affected
o Workaround
o Acceptable resolution time
It is not necessary (nor is it likely) to have perfect match of each
characteristic to categorize a problem report at a particular severity level. A
given problem must be judged against each of the characteristics to make an
overall assessment of which severity level best describes the problem.
The characteristics below do not cover conversion requests. Severity levels for
conversion requests may carry a different set of characteristics and weightings
which is determined by both parties when the request is made.
-------------------------------------------------------------------------------------------------------------
Severity 1 Severity 2 Severity 3
(Critical) (High) (Medium)
-------------------------------------------------------------------------------------------------------------
Business and financial exposure
-------------------------------- ------------------------ -------------------------- ----------------------
The application The application The application
failure creates a failure creates a failure creates a low
serious business and serious business and business and
financial exposure. financial exposure. financial exposure.
-------------------------------- ------------------------ -------------------------- ----------------------
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-------------------------------------------------------------------------------------------------------------
Severity 1 Severity 2 Severity 3
(Critical) (High) (Medium)
-------------------------------------------------------------------------------------------------------------
Work Outage
-------------------------------- ------------------------ -------------------------- ----------------------
The application failure The application failure The application failure
causes the client to be causes the client to be causes the client to be
unable to work or unable to work or unable to perform some
perform some significant perform some significant small portion of their
portion of their job. portion of their job. job, but they are still
able to complete most
other tasks. May also
include questions and
requests for information.
-----------------------------------------------------------------------------------------------------------------
Number of Clients Affected
-----------------------------------------------------------------------------------------------------------------
The application failure The application failure The application failure .
affects a large number affects a large number affects a small number
of clients. of clients. of clients.
-----------------------------------------------------------------------------------------------------------------
Workaround
-----------------------------------------------------------------------------------------------------------------
There is no acceptable There is an acceptable There may or may not be .
workaround to the and implemented an acceptable workaround
problem (i.e., the job workaround to the to the problem.
cannot be performed in problem (i.e., the job
any other way). can be performed in some
other way).
-----------------------------------------------------------------------------------------------------------------
Response Time
-----------------------------------------------------------------------------------------------------------------
Within one hour. Within four hours. Within eight hours or by
next business day (EST).
-----------------------------------------------------------------------------------------------------------------
Resolution Time
-----------------------------------------------------------------------------------------------------------------
C.A.H.C. shall The maximum The maximum
devote such acceptable acceptable .
personnel and resolution time is resolution time is
resources to one business day eight business days
resolution consistent unless, employing due unless, employing
with the exigency diligence, the failure due diligence, the
of this Severity level cannot be resolved within failure cannot be
business day. resolved within eight
business days.
---- -------------------------- -------------------------- -------------------------- ---------------------------
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Escalation Procedures
In the event there is a dispute regarding response time or severity level, the
VP of C.A.H.C.'s Information Technology department and the Client's director of
Information Technology will work together to resolve the conflict. If they are
unable to resolve the issue, it will be brought to the CEOs of both companies
for issue resolution.
Support Metrics Package
Metrics reporting against the resolution targets identified above will focus on
the time to resolve tickets by application and severity. This metric will
include the support and conversion requests that are transferred to C.A.H.C. for
resolution. They will not include support requests that are resolved by other
organizations. The metrics will be reported via existing standard problem-ticket
system reports provided by Client as available.
C.A.H.C. acknowledges that its performance under this agreement consistent with
Response Time and Resolution Time provided above, is the essence of this
agreement. C.A.H.C.'s two consecutive failures ("Failure") to provide such
performance consistent with the requirements of this agreement, shall entitle
PREIT to a discount or rebate, in PREIT's sole discretion, of five percent (5%)
of the monthly payment by PREIT to C.A.H.C. provided for in this agreement for
the Failure.
Access
The Client will provide C.A.H.C. with all information, facilities and services
reasonably required by C.A.H.C. to enable it to perform its obligations under
this agreement effectively. Without limitation C.A.H.C. will provide the Client
access to all Client's information and Client's resources, when required.
Data Integrity Measures
C.A.H.C and Client shall use virus-detection and protection software, and
if either party determines that a virus has been introduced into the supported
software applications, it will promptly notify the other party and use its
commercially reasonable efforts to eradicate the virus as promptly as reasonably
practicable. C.A.H.C. shall install such virus-detection and protection software
as Client reasonably requests. If Client requires additional virus-detection and
protection software, Client shall bear the cost of procuring such software.
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INDEMNITY.
Each party (the "indemnitor") shall indemnify and hold harmless each
other party and its affiliates, directors, officers, employees and agents
(collectively, the "indemnitee") against any and all losses, liabilities,
judgments, awards and reasonable costs and expenses (including costs of
investigation and legal fees and expenses) arising out of or related to any
third party claim for personal injury or property damage arising from or in
connection with the services provided under this agreement to the extent that
such injury or damage was caused by an act or omission of the indemnitor or its
employees or agents, including any damages finally awarded attributable to such
claim and any reasonable expense incurred by indemnitee in assisting indemnitor
in defending against such claim; provided, however, that indemnitee gives
indemnitor: (a) written notice within a reasonable time after indemnitee is
served with legal process in an action asserting such claims, provided that the
failure or delay to notify indemnitor shall not relieve indemnitor from any
liability that it may have to indemnitee hereunder so long as the failure or
delay shall not have prejudiced the defense of such claim; (b) reasonable
assistance in defending the claim; and (c) sole authority to defend or settle
such claim. In the event indemnitor elects not to defend any such claim,
indemnitee shall have the option but not the duty to reasonably settle or defend
the claim at its cost and indemnitor shall indemnify indemnitee for such
settlement or any damages finally awarded against indemnitee attributable to
such claim, reasonable costs and expenses (including costs of investigation and
reasonable legal fees and expenses), and interest on such recoverable funds
advanced.
Staffing
C.A.H.C. will provide the appropriate level of staffing required to meet the
obligations of this agreement within the current skill sets and resources of
those individuals listed in Exhibit A. If there is a reduction in C.A.H.C.
staffing that affects the level of support of this agreement the Client has the
right to request a renegotiation of the monthly fee in proportion to the reduced
level of support. The Client will make available the necessary resources, in
Client's sole discretion, to work with C.A.H.C. staff members.
General Terms and Conditions
Term of Agreement/Disposition of Equipment
The term of this agreement shall be for six months. In addition, Client shall
have the option to renew this agreement, upon the same terms and conditions,
except for the payment to be made to C.A.H.C. by Client, which payment shall be
calculated as provided in this paragraph or the "Payment Terms" paragraph. Such
renewal shall occur on 30 days notice by Client to C.A.H.C. and be month to
month, for a maximum of three months, following the initial six month term. For
each month beyond the initial six month term for which this agreement is
renewed, Client shall pay C.A.H.C. the amount provided in the "Payment Terms"
paragraph herein, less the value of any personnel identified in Exhibit A who is
no longer providing IT support to Client during any renewal period. Following
termination of this agreement, C.A.H.C. shall have 30 days to notify Client
whether C.A.H.C. will purchase from Client, assume the lease payments for or
meet the buyout terms for, as set forth in Exhibit B, items of Equipment.
Following the expiration of C.A.H.C.'s right to purchase, assume the lease
payments for or meet the buyout terms for items of Equipment, Client shall have
90 days in which to exercise its right, in its complete discretion, to retain or
dispose of items of Equipment not purchased by C.A.H.C. or for which C.A.H.C.
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has not assumed lease payments or met the buyout terms and such Equipment may
remain at the Pasquerilla Plaza, Johnstown, Pennsylvania site for that 90
period. The owner of any item of Equipment shall bear all costs of disposal,
packing and shipping costs for such item. AS TO ANY ITEM OF EQUIPMENT THAT
C.A.H.C. PURCHASES, ASSUMES THE LEASE FOR OR OBTAINS FROM CLIENT UPON THE
EXPIRATION OR TERMINATION OF THIS AGREEMENT, CLIENT MAKES NO WARRANTY, WHETHER
STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR USAGE OF
TRADE.
Termination of Agreement
In the case of a termination by reason of a material breach not cured within
thirty days following notice committed by either party, the non-breaching party
shall be entitled to a pro rata refund of any fees paid or owing for the balance
of the terminated term.
Payment Terms
Subject to the second paragraph of this "Payment Terms" provision, the Client
agrees to pay C.A.H.C. in advance at its office in Johnstown on a monthly basis
due on the first business day of each month in the amount of $18,360.00 for the
first six months of this agreement. The first payment from Client to C.A.H.C.
for the initial six month term of this agreement, will be due on the first
business day of the first full month following the merger of Crown American
Realty Trust into and with PREIT, and will include the prorated portion of the
previous month's charges in addition to the current full month's charges. After
an initial six month period and any renewal periods, the Client shall no longer
be required to make any further payments to C.A.H.C. for IT support or for any
other reason except upon such terms as the parties mutually agree nor shall
C.A.H.C. be required to provide any additional services unless the terms,
including payment, are agreed to by the parties.
The parties shall negotiate in good faith to set the level of the monthly fee
owing from the Client to C.A.H.C. during the initial six month term of this
agreement, under the following circumstances: a) one or more personnel whose
name and value is identified in Exhibit A is no longer employed by C.A.H.C. so
that Client no longer receives the benefit of that employee's services and
C.A.H.C. cannot fill the position with an employee of commensurate ability or b)
C.A.H.C. reduces its usage of some or all of the Equipment from the levels
reflected in Exhibit C. so that C.A.H.C. no longer receives the value assigned
in Exhibit C to the use of the Equipment.
Ownership of Data
The information contained in the Client's database files is the property of the
Client and shall be returned to the Client at the expiration or earlier
termination of this Agreement.
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Ownership of Equipment and Software
Client acknowledges that it owns no rights, including but not limited to
copyright, in or to the custom application software including patches, updates
and all other collateral material relating to the custom application software
("Custom Application Rights") or in and to any modifications to third party
software identified in Exhibit D designated "Hotel Only" or, in the case of
software designated "REIT and Hotels" in the "Hotel" version of such software.
C.A.H.C. acknowledges that it owns no rights, including but not limited to
copyright, in or to the Custom Application Rights or in and to any modifications
to third party software identified in Exhibit D in the case of software
designated "REIT and Hotels," in the "REIT" version of such software. C.A.H.C.
acknowledges that the data, files and other information of the Client contains
trade secrets that C.A.H.C. agrees to hold in trust and confidence at the same
level of confidentiality that C.A.H.C. maintains for its own confidential
material, but in any event, at no less a standard than is reasonable. C.A.H.C.
agrees to provide to Client all source code that it possesses that is for or
related to the application software and/or Custom Application Rights. C.A.H.C.
shall insure the integrity of all applications, their source and object code and
Custom Application Rights and no access will be given to such materials by any
non- C.A.H.C. personnel at any time without prior consent by the Client.
Confidentiality
C.A.H.C shall treat as confidential any information it receives relating in any
way to the business of the Client. C.A.H.C may not copy any such information or
disclose it to any other person without the Client's written consent.
C.A.H.C may make use of this confidential information only for the purpose and
to the extent required to enable C.A.H.C to perform its obligations under this
agreement.
Warranties and Remedies
C.A.H.C. warrants that it has the ability to render the IT support services
described in this agreement and that the services will be performed in a
professional manner consistent with industry standards reasonably applicable to
such services. If, as a result of gross C.A.H.C. negligence or willful
misconduct, the Client's property or equipment is damaged, C.A.H.C. will
reimburse the Client for that portion of any damages for which C.A.H.C. is found
to be liable by a Court of competent jurisdiction, not to exceed the total
amount of fees paid to C.A.H.C. by Client at the time the damage occurred.
Force Majeure
Neither party shall be held liable for damages caused by delay or failure to
perform hereunder when such delay or failure is due to acts of God or any other
causes beyond its control.
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Validity
In the event any provision of this Agreement is deemed invalid or unenforceable,
all remaining provisions shall remain valid and enforceable.
Governing Law
This agreement shall be governed by the laws of the Commonwealth of
Pennsylvania.
Entirety of Agreement.
This agreement contains the entire understanding between the parties concerning
the subject matter of this Agreement and supersedes: a) existing intra-company
agreements including without limitation the Agreement for On-line Data
Processing Services dated January 1, 2003 between C.A.H.C. and Crown American
Properties L.P. and b) all prior understandings and agreements, whether oral or
written, between C.A.H.C. and Client with respect to the subject matter hereof
and thereof. There are no representations, warranties, agreements, arrangements
or understandings, oral or written, between the parties hereto relating to the
subject matter of this agreement and such other documents and instruments which
are not fully expressed herein or therein.
Amendments.
This agreement may be amended, and the terms hereof may be modified, only by a
writing executed by each party hereto, and any matter referred to herein as
mutually agreed to or designated by the parties must be evidenced by such a
writing.
Notice.
Any notice, demand or communication required, permitted, or desired to be given
hereunder shall be deemed effectively given when faxed or when received by
receipted overnight courier, or five (5) days after being deposited in the
United States mail, with postage prepaid thereon, certified or registered mail,
return receipt requested, addressed as follows:
Client:
Pennsylvania Real Estate Investment Trust
200 South Broad St.
Philadelphia, PA 19102
Fax: 215-546-7311
ATTN: Ms. Helane Stein
C.A.H.C.:
Crown American Hotels Company
Pasquerilla Plaza
Johnstown, PA 15901
Fax: 814-536-9591
ATTN: Mr. Jim Pendleton
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or to such other address, and to the attention of such other person or officer
as any party designates in writing at least five days before such notice, demand
or communication being given.
Benefit; Assignment.
Subject to express provisions herein to the contrary, this Agreement shall inure
to the benefit of and be binding upon the parties and their respective legal
representatives, successors and permitted assigns, and the rights and
obligations of the parties hereunder shall survive the sale or other transfer of
substantially all of the capital stock or assets of any party or a change in
control of any party. Notwithstanding the foregoing, C.A.H.C. shall not be
entitled to assign its rights and obligations under this Agreement, without the
express consent of Client.
Waiver and Consents.
Any waiver of any provision of this Agreement and any consent given hereunder
must be in writing signed by the party sought to be bound. The waiver by any
party of breach or violation of any provision of this Agreement shall not
operate as, or be construed to constitute, a waiver of any subsequent breach or
violation of the same or any other provision hereof.
Construction.
Inasmuch as this Agreement is the result of negotiations among sophisticated
parties of equal bargaining power represented by counsel, no inference in favor
of, or against, any party shall be drawn from the fact that any portion of this
Agreement has been drafted by or on behalf of such party. The Section headings
of this Agreement are for convenience of reference only and do not form a part
hereof and do not in any way modify, interpret or construe the intention of the
parties.
Counterparts.
This Agreement, and any document or instrument required or permitted hereunder,
may be executed in counterparts, each of which shall be deemed an original and
all of which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the Effective Date.
Signature: /s/ Ronald J. Hamilton Signature: /s/ Bruce Goldman
---------------------- -----------------
Ronald J. Hamilton Bruce Goldman
Vice President and Chief Financial Officer Vice President and
Crown American Hotels Company (as to the entire General Counsel
agreement) PREIT Services, LLC
Vice President and Chief Finanical Officer
Crown American Properties L.P. by Crown American
Investment Company, its sole General Partner (as to the
"Entirety of the Agreement" paragraph only)
Date: November 20, 2003 Date: November 20, 2003
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