Exhibit 10.79
PREFERRED STOCK REDEMPTION AGREEMENT
THIS PREFERRED STOCK REDEMPTION AGREEMENT, is made and entered into this
16 day of April 2002, by and between KRAMONT REALTY TRUST, a Maryland real
estate investment trust (the "Company") and XXXXX X. XXXXXXX, as escrow agent
("Seller").
W I T N E S S E T H
WHEREAS, Seller owns 11,155 shares of the Series A-1 Increasing Rate
Cumulative Preferred Shares of Beneficial Interest of the Company (the
"Shares"); and
WHEREAS, the Company desires to redeem from Seller, and Seller desires to
sell to Company, the Shares upon the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. The Transaction.
1.1 Purchase and Sale of the Shares. At the Closing (defined
herein), the Company shall redeem from Seller, and Seller shall sell and
transfer to the Company, all of the Shares, free and clear of all liens,
encumbrances, restrictions and security interests of any kind whatsoever.
1.2 Purchase Price. The purchase price for the Shares shall be Six
Million Forty-Two Thousand Dollars ($6,042,000) (the "Purchase Price").
1.3 Payment of Dividends. At the Closing, Seller shall receive an
additional payment equal to that portion of dividends accruing on the Shares
between April 1, 2002 and the Closing Date.
2. Closing Conditions.
2.1 Company Closing Conditions. The Company's obligations to redeem
the Shares is subject to the following conditions being met (or waived by the
Company) within thirty (30) days from the date hereof;
(a) The Company shall have received an equity investment of
not less than Thirty Million Dollars ($30,000,000).
(b) The Company shall have received an opinion from counsel
with respect to the tax consequences relating to the redemption of the Shares
satisfactory to the Company.
2.2 Seller Closing Conditions. If the Closing has not occurred on or
before May 15, 2002 and the average closing price (the "Average Closing Price")
of the Common Stock of the Company as listed in the Wall Street Journal for any
five (5) consecutive business day period commencing on or after May 15, 2002
exceeds $14.00 per share, Seller shall have the right to terminate this
Agreement, subject to the Company's right to redeem the Shares by paying
additional
Purchase Price. In such event, the Purchase Price shall be increased by an
amount equal to (a) 557,750 multiplied by (b) the amount by which the Average
Closing Price exceeds $14.00 per share.
3. Closing. The closing under this Agreement ("Closing") will take place
within ten (10) days after the satisfaction or waiver by the Company of the
conditions set forth in Section 2.1 above or at such other time as the parties
shall agree at such place as the parties shall mutually agree or June 30, 2002
(the "Closing Date"). If the closing conditions are not satisfied or waived, and
the Closing has not occurred by June 30, 2002, this Agreement shall terminate
and be null and void.
4. Representations and Warranties; and Certain Covenants.
(a) Seller represents and warrants, and/or covenants, to
Company that:
(i) Seller shall in good faith carry out all terms and
conditions binding upon Seller that are contained in this Agreement.
(ii) Seller is the sole legal and beneficial owner of
the Shares and has good and marketable title to the Shares, free and clear of
all claims, liens, encumbrances, restrictions and security interests of any kind
whatsoever. The Shares represent all of the shares of stock in Company owned by
Seller, or against which Seller has any ownership rights or claims, and the
conveyance of the Shares is understood to convey all of Seller's interest in and
to Company. There are no outstanding options or agreements to which Seller is a
party under which any person or entity has the right, present or future, to
acquire from Seller the Shares or any other shares or securities of Company.
(iii) Seller has the individual capacity, personal power
and authority to execute, deliver and perform this Agreement. Seller has the
full right, power and authority to sell, assign and transfer the Shares. This
Agreement has been duly executed and delivered by Seller and constitutes the
valid and binding obligation of Seller, enforceable against Seller in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance and other similar laws
relating to or affecting the rights and remedies of creditors generally and by
general principles of equity.
(iv) The execution, delivery and performance of this
Agreement by Seller will not result in (A) the breach of or default under any
contract, agreement or other arrangement to which Seller is a party or by which
Seller is bound or to which Seller's properties or assets may be bound or
subject, or (B) the violation of any law, statute, rule, decree, order, judgment
or regulation binding upon Seller. No consent or approval of any third party is
required in connection with the sale of the Shares.
(v) Seller has not made any agreement or taken any
action that may cause anyone to become entitled to a commission or other fee as
a result of the transactions contemplated hereunder.
(b) Company represents and warrants, and/or covenants, to
Seller that:
(i) Company shall in good faith carry out all terms and
conditions binding upon Company that are contained in this Agreement.
(ii) The execution, delivery and performance of this
Agreement has been duly authorized by all necessary corporate action on the part
of Company. This Agreement has been duly executed and delivered by Company and
constitutes the valid and binding obligation of Company, enforceable against
Company in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance and
other similar laws relating to or affecting the rights and remedies of creditors
generally and by general principles of equity.
(iii) The execution, delivery and performance of this
Agreement by Company will not result in (A) the breach of or default under any
material contract, agreement or other arrangement to which Company is a party or
by which Company is bound or to which Company's properties or assets may be
bound or subject, or (B) the violation of any law, statute, rule, decree, order,
judgment or regulation applicable to Company. No consent or accommodation of any
third party is required in connection with the purchase of the Shares.
(iv) Company has not made any agreement or taken any
action that may cause anyone to become entitled to a commission or other fee as
a result of the transactions contemplated hereunder.
5. Deliveries.
(a) At Closing, Seller shall (i) deliver to Company
certificates representing the Shares, together with duly executed stock transfer
powers in favor of Company or such other endorsements as may be necessary to
transfer good and marketable title to such Shares; and (ii) deliver such other
documents as Company's counsel reasonably believes are necessary to effectuate
the transactions contemplated by this Agreement.
(b) At Closing, Company shall deliver or cause to be delivered
to Seller (i) the Purchase Price and (ii) such other documents as Seller's
counsel reasonably believes are necessary to effectuate the transactions
contemplated by this Agreement.
6. Miscellaneous.
(a) Survival. All representations, warranties, indemnities and
agreements of the parties contained in this Agreement, will survive Closing
hereunder, and will not be merged into the instruments of transfer to be
delivered at Closing.
(b) Notices. All notices, demands and other communications to
be made hereunder shall be given in writing and shall be deemed to have been
duly given if personally delivered or sent by certified mail, postage prepaid,
return receipt requested, or by a national and reputable overnight courier,
prepaid with receipt, to the other parties at the following addresses or at such
other addresses as may be given by notice by the indicated counsel:
to Seller: Xxxxx X. Xxxxxxx
c/o Southern Management Corporation
0000 Xxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
with copy to: [ ]
to Company: Kramont Realty Trust
Xxxxxxxx Xxxxx
000 X. Xxxxxxxxxx Pike
Suite 200
Plymouth Meeting, PA 19462
Attn: Xxxxxxx X. Xxxxxxxx
Senior Vice President of
Asset Management
with copy to: Xxxx X. Xxxxxx, Esquire
Fox, Rothschild, O'Brien & Xxxxxxx, LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Notice shall be deemed effective, if personally delivered, when delivered, if
mailed, at midnight on the third business day after deposit in the U.S. mail,
and if sent by overnight delivery, one day after being given to the overnight
courier.
(c) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns.
(d) Governing Law; Venue. This Agreement has been made,
executed and delivered in and is to be governed, construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania, regardless of laws
that might otherwise govern under applicable principles of conflicts of law. Any
dispute arising under this Agreement shall be brought in the United States
District Court for the Eastern District of Pennsylvania if such federal
jurisdiction is available or, if not available, then in a court of competent
jurisdiction in Xxxxxxxxxx County, Pennsylvania.
(e) Headings. The headings in this Agreement are for reference
only and shall not affect the interpretation of this Agreement.
(f) Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter of this Agreement and supersedes all prior written and oral
negotiations, agreements and writings executed or made prior to the date hereof
with respect to the subject matter of this Agreement.
(g) Modification. This Agreement may be amended, superseded,
terminated or extended, and the terms hereof may be waived, only by a written
instrument signed by all of the parties or, in the case of a waiver, signed by
the party waiving compliance.
(h) Preservation of Rights. No delay on the part of any party
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any
waiver on the part of any party of any right, power or privilege, nor any single
or partial exercise of any right, power or privilege, preclude any further
exercise thereof or the exercise of any other such right, power and privilege.
The rights and remedies herein provided are cumulative and are not exclusive of
any rights or remedies that any party may otherwise have at law or in equity.
(i) Severability. The provisions of this Agreement are
independent of and severable from each other. No provisions will be affected or
rendered invalid or unenforceable by virtue of the fact that for any reason any
one or more of the provisions hereof may be invalid or unenforceable in whole or
in part.
(j) Counterparts. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
(k) Indulgences. Neither the failure nor any delay on the part
of any party hereto to exercise any right, remedy, power or privilege under this
Agreement will operate as a waiver thereof, nor will any single or partial
exercise of any right, remedy, power or privilege preclude any other or future
exercise of the same or of any other right, remedy, power or privilege. Any
waiver of such item with respect to any one occurrence will not be construed as
a similar waiver with respect to any other occurrence.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
"SELLER"
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Xxxxx X. Xxxxxxx, as escrow agent
"COMPANY"
KRAMONT REALTY TRUST
By:
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Xxxxx X. Xxxxxx, Xx.
President
