Exhibit 10.29
AGREEMENT REGARDING
XXXXXXX XXXXXX XXXXX HARRISBURG LP
This Agreement Regarding Xxxxxxx Xxxxxx Xxxxx Harrisburg LP (the
"Agreement") is made effective the 19 day of July, 2004, by Xxxxxxx
Harrisburg General Partner Inc. as the general partner (the "Mall General
Partner"), Xxxxxxx Harrisburg Limited Partnership, LP (the "Xxxxxxx XX"),
Xxxxxx-Xxxxx Real Estate Fund III, L.P., Xxxxxx-Xxxxx Real Estate Parallel Fund
III, L.P., Xxxxxx-Xxxxx Capital Real Estate Fund III, L.P. and Xxxxxx-Xxxxx Real
Estate Equity Fund III, L.P. (each such Xxxxxx-Xxxxx entity a "Fund III Partner"
and, collectively, the "Fund III Partners") and Xxxxxx-Xxxxx Real Estate Fund
IV, L.P., Xxxxxx-Xxxxx Real Estate Parallel Fund IV, L.P. and Xxxxxx-Xxxxx
Capital Real Estate Fund IV, L.P. (each a "Fund IV Partner" and, collectively,
the "Fund IV Partners", and collectively, together with the Fund III Partners,
the "Fund Partners"), Xxxxxxx Equities Operating Partnership LP, a Delaware
limited partnership (the "Operating Partnership"), Xxxxxxx Holdings Business
Trust I, a Massachusetts business trust (the "OP General Partner"), and Xxxxxxx
Mall Properties, Inc., a Maryland corporation ("FMP").
For valuable consideration, the parties agree as follows:
1. EXISTING MALL PARTNERSHIP INTERESTS. The parties all acknowledge and
agree that the existing partners in Xxxxxxx Xxxxxx Xxxxx Harrisburg LP, a
Pennsylvania limited partnership (the "Mall Partnership") are as shown on
Exhibit A attached hereto.
2. TRANSFER BY XXXXXXX ENTITIES. Fund III Partners and Fund IV Partners
hereby consent to the assignment by Xxxxxxx XX and Mall General Partner of their
partnership interests in the Mall Partnership to the Operating Partnership, OP
General Partner, FMP or any subsidiary of Operating Partnership, FMP or OP
General Partner provided that in all cases, the Chief Executive officer or
president of FMP, or the controlling stockholder of FMP, is Xxxxx Xxxxxxx at the
time of such transfer and the trustee of the OP General Partner is Xxxxx Xxxxxxx
or an entity owned and controlled by FMP at the time of such transfer. Fund III
Partners and Fund IV Partners acknowledge that such assignment has not yet
occurred and agree that the foregoing consent shall be valid and apply to any
assignment occurring within one (1) year following the date of this Agreement.
Alternatively, at the election of the shareholders of Mall General Partner or
the partners of Xxxxxxx XX, such shareholders or partners may assign their
ownership interests in Mall General Partner or Xxxxxxx XX to Operating
Partnership, OP General Partner, FMP or any subsidiary of Operating Partnership,
FMP or OP General Partner and, in such event, Mall General Partner shall
continue as the general partner of the Mall Partnership and Xxxxxxx XX shall
continue as a limited partner of the Mall Partnership provided that in all
cases, the Chief Executive officer or president of FMP, or the controlling
stockholder of FMP, is Xxxxx Xxxxxxx at the time of such transfer and the
trustee of the OP General Partner is Xxxxx Xxxxxxx or an entity owned and
controlled by FMP at the time of such transfer. Following the effective date of
such assignment, the assignee of the interest of Mall General Partner shall be
the substitute general partner of the Mall Partnership and the assignee of the
interest of Xxxxxxx XX shall be a substitute limited partner of the Mall
Partnership. Promptly following request, Fund III Partners and Fund IV Partners
shall execute any further consents or documents reasonably requested to evidence
or give effect to the foregoing, including without limitation an amendment to
the Agreement of Limited Partnership (as amended by the first and second
amendments thereto, the "Mall Partnership Agreement") of the Mall Partnership.
3. OPTION TO PURCHASE FUND'S PARTNERSHIP INTERESTS.
(a) Grant of Option. At any time within one (1) year following the
date of this Agreement (the "Option Expiration Date"), any one of Xxxxxxx XX,
Mall GP, FMP, Operating Partnership and/or OP General Partner (or any subsidiary
thereof designated by any of the foregoing) shall have the option ("Option") to
purchase all of the partnership interests of Fund III Partners and Fund IV
Partners in the Mall Partnership (the "Fund Partnership Interests"), provided
that at the Option Closing (as hereinafter defined) the Fund III Partners are
released from all liability to Commerce Bank, N.A. ("Commerce") including,
without limitation, all liability under that certain Guaranty Agreement dated
December 10, 2003 executed and delivered by the Fund III Partners to Commerce
(the "Commerce Guaranty").
(b) Exercise and Closing of Option. The Option may be exercised by
written notice to Fund III Partners and Fund IV Partners given pursuant to the
notice provisions of the Mall Partnership Agreement. The consummation of the
sale of the Fund Partnership Interests (the "Option Closing") following exercise
of the Option shall occur on the first to occur of (i) the Option Expiration
Date or (ii) such date as may be specified in the notice of exercise of the
option or any subsequent written notice from the entity exercising the Option
(the "Option Purchaser"), which date shall be no later than sixty (60) days
after the date of notice of exercise of the option; provided, however, in no
event shall the Option Closing occur on or before October 2, 2004. The Option
Closing shall occur at a place to be designated by the Option Purchaser in
Southeastern Pennsylvania. In the event of the failure of the Option Purchaser
to proceed with the purchase of the Fund Partnership Interests within the time
frames specified in this Agreement, this option shall automatically terminate
and be of no further force and effect.
(c) Deliveries at Option Closing. At the Option Closing, (i) the
Option Purchaser shall pay to Fund III Partners and Fund IV Partners the total
sum of Twenty Seven Million Six Hundred Thousand Dollars ($27,600,000.00) in
cash (by wire transfer of funds), which funds shall be divided between Fund III
Partners and Fund IV Partners in proportion to their respective ownership of the
Fund Partnership Interests, and (b) the Option Purchaser shall deliver to the
Fund III partners a release of the Commerce Guaranty and other Commerce
obligations, and (c) the Fund III Partners and Fund IV Partners shall deliver to
the Option Purchaser a written assignment of the Fund Partnership Interests to
the Option Purchaser in the form attached hereto as Exhibit B.
The Partnership shall pay the legal fees of both the Option Purchaser
and the Fund III and Fund IV Partners in connection with this Agreement. Both
the Option Purchaser, and the Fund III Partners and the Fund IV partners (in
proportion to their respective ownership of the Fund Partnership Interests)
shall each pay the cost of their own legal fees in connection with the Option
Closing. If any transfer taxes or other governmental fees or charges are imposed
on any person as a result of the existence of this Agreement or any assignment
permitted under this Section 3 (whether or not such transfer taxes are payable
solely because of the existence of this Agreement or because the transfer or
potential transfer hereunder has been aggregated with other transfers of
interests, including the transfer described in Section 2 above), such expenses
shall be paid as follows: fifty percent half (50%) by the Fund III Partners and
Fund IV Partners (in proportion to their respective interests in the Mall
Partnership) and fifty percent (50%) by the Option Purchaser.
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(d) Status of Fund Partnership Interests. Fund III Partners and Fund
IV Partners covenant, warrant and represent to the Option Purchaser that (a)
none of Fund III Partners or Fund IV Partners has previously assigned or
encumbered the Fund Partnership Interests, (b) none of Fund III Partners or Fund
IV Partners has taken any action in breach of the Mall Partnership Agreement,
(c) each of Fund III Partners and Fund IV Partners has the requisite power and
authority to enter into this Agreement and perform their obligations hereunder,
(d) to the knowledge of the Fund III Partners and the Fund IV Partners, there is
no litigation or arbitration pending or threatened against the Fund III Partners
or the Fund IV Partners regarding the Fund Partnership Interests or the Mall
Partnership, (e) no broker is entitled to any commission as a result of the
Option Closing or this Agreement, and (f) prior to the Option Expiration Date,
none of Fund III Partners or Fund IV Partners will assign or encumber the Fund
Partnership Interests in whole or in part without the prior written approval of
FMP, which approval shall not be unreasonably withheld so long as the assignee
or lienholder agrees to be bound by the provisions of this Agreement in a
written instrument reasonably acceptable to FMP; the foregoing covenants,
warranties and representations shall survive the Option Closing. Except as
expressly stated in this paragraph, the Fund Partnership Interests shall be
transferred to and accepted by the Option Purchaser without any covenants,
warranties or representations by Fund III Partners or Fund IV Partners, and the
Fund Partnership Interests shall be conveyed without any implied warranties of
any nature, "AS IS" and "WITH ALL FAULTS." Without limitation of the foregoing,
each potential Option Purchaser hereby acknowledges that it is and will be
familiar with the operations of the Mall Partnership and the assets of the Mall
Partnership and that, if it exercises the Option, it will do so based on its own
independent knowledge and investigation of such matters and not in reliance on
any covenant, warranty or representation of Fund III Partners or Fund IV
Partners that is not expressly stated in this Agreement.
4. PAYMENT FOR EXPANSION SITE. Following the Option Closing, the Option
Purchaser shall pay to the Fund III Partners and the Fund IV Partners the
Expansion Site Payment (hereinafter defined) in connection with the expansion
site generally depicted as DS-4 on Exhibit C (the "Expansion Site). The
Expansion Site Payment shall be due and payable no later than ten (10) days
prior to the commencement of construction of improvements for an enclosed
building on the Expansion Site, including site improvements for an enclosed
building on the Expansion Site (hereinafter, a "Development Event"). The
Expansion Site Payment shall be in the amount of One Million Three Hundred Fifty
Four Thousand Nine Hundred Sixty Three ($1,354,963.00) Dollars unless the
Expansion site is developed for a single tenant of more than Fifty Thousand
(50,000) square feet of building area in which event the Expansion Site Payment
shall be zero and the Option Purchaser shall have no further obligations under
this paragraph 4.
The obligations of the Option Purchaser to make the payment for the
Expansion Site shall survive the Option Closing and any sale or transfer of the
Expansion Site or any interest of the Option Purchaser in the Mall Partnership.
3
5. MALL PARTNERSHIP CAPITAL CONTRIBUTIONS. If required, any
contributions of the partners to the Mall Partnership from the date of this
Agreement until the first to occur of the Option Closing or the Option
Expiration Date shall be made in the form of a unsecured loan from each partner
to the Mall Partnership, which loans shall bear interest at the Priority Return
rate specified in the Mall Partnership Agreement. Any such loans shall be repaid
by the Mall Partnership at or prior to the Option Closing and shall not affect
the purchase price for the Fund Partnership Interests. If the Option is not
exercised or the Option Closing does not occur, such loans shall be repaid prior
to any distributions under the Partnership Agreement of the Mall Partnership.
Upon request by any contributing partner, the parties shall cause the Mall
Partnership to execute a promissory note reflecting contributions by such
partner pursuant to this paragraph.
6. RATIFICATION OF MALL PARTNERSHIP AGREEMENT. All other terms and
provisions contained in the previously executed Mall Partnership Agreement are
hereby ratified and shall remain in full force and effect.
7. PENNSYLVANIA LAW. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania without giving
effect to the conflict of laws principles thereof.
8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which together shall be deemed to be an original as
against any party whose signature appears thereon, and all of such shall
together constitute one and the same instrument.
9. DEFINED TERMS. All capitalized terms not defined herein shall have
the meanings as set forth in the Mall Partnership Agreement.
10. ATTORNEYS FEES. The prevailing party in any litigation regarding
this Agreement shall be entitled to recover its costs and reasonable attorneys
fees.
11. ENTIRE AGREEMENT. This Agreement represents the entire agreement of
the parties regarding the subject matter hereof; all prior negotiations,
discussions and agreements are merged herein. This Agreement has been reached by
negotiation between sophisticated parties represented by legal counsel and shall
therefore not be construed against a party based on such party or its counsel
having prepared any provision hereof.
12. TIME IS OF THE ESSENCE. All times provided for herein are and shall
be of the essence of this Agreement.
13. ASSIGNMENT. This Agreement and the obligation of the Option
Purchaser hereunder to make the Expansion Site Payment may not be assigned by
Option Purchaser without the written consent of the Fund III Partners and the
Funds IV Partners in their sole discretion until the Option Closing has
occurred. Thereafter, this Agreement and/or the obligation of the Option
Purchaser to make the Expansion Site Payment may not be assigned by Option
Purchaser unless either (a) the Fund III Partners and the Funds IV Partners have
given written consent to such assignment in their sole discretion or (b) the
assignment is given to a purchaser of the majority of the Harrisburg Mall
project in Harrisburg, Pennsylvania, and such purchaser has a net worth of not
less than Twenty Two Million Five Hundred Thousand Dollars ($22,500,000). Upon a
permitted assignment under either of the foregoing two sentences and assumption
of the assigned obligations by the assignee, the assignor shall be released from
further obligations hereunder. Notwithstanding the foregoing, after the Option
Closing this Agreement and/or the obligation of Option Purchaser to make the
Expansion Site Payment may be assigned without satisfaction of either condition
in the preceding sentence to a purchaser of the majority of the Harrisburg Mall
project in Harrisburg, Pennsylvania if the assignor acknowledges in writing that
the assignor is not being released from liability under this Agreement by reason
of such assignment.
4
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first written above.
THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK
SIGNATURES APPEAR ON FOLLOWING PAGES.
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XXXXXXX HARRISBURG GENERAL PARTNER INC.,
a Pennsylvania corporation
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------------
Xxxxxxxx Xxxxxxx
President
XXXXXXX HARRISBURG LIMITED PARTNERSHIP, LP,
a Pennsylvania limited partnership
By: XXXXXXX HARRISBURG GENERAL PARTNER INC.,
a Pennsylvania corporation, its general
partner
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------
Xxxxxxxx Xxxxxxx
President
XXXXXXX EQUITIES OPERATING PARTNERSHIP, LP,
a Delaware limited partnership
By: XXXXXXX HOLDINGS BUSINESS TRUST I,
a Massachusetts business trust,
its general partner
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------
Xxxxxxxx Xxxxxxx
Trustee
XXXXXXX HOLDINGS BUSINESS TRUST I,
a Massachusetts business trust
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------
Xxxxxxxx Xxxxxxx
Trustee
XXXXXXX MALL PROPERTIES, INC.,
a Maryland corporation
By: /s/ Xxxxxxxx Xxxxxxx
--------------------------
Xxxxxxxx Xxxxxxx
President
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XXXXXX-XXXXX REAL ESTATE FUND III, L.P.
By: Xxxxxx-Xxxxx Group III, L.P.,
its General Partner
By: Xxxxxx-Xxxxx Group III, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, X.X.
XXXXXX-XXXXX REAL ESTATE PARALLEL
FUND III, L.P.
By: Xxxxxx-Xxxxx Group III, L.P.,
its General Partner
By: Xxxxxx-Xxxxx Group III, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, X.X.
XXXXXX-XXXXX CAPITAL REAL ESTATE
FUND III, L.P.
By: Xxxxxx-Xxxxx Group III, L.P.,
its General Partner
By: Xxxxxx-Xxxxx Group III, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, X.X.
XXXXXX-XXXXX REAL ESTATE EQUITY
FUND III, L.P.
By: Xxxxxx-Xxxxx Group III, L.P.,
its General Partner
By: Xxxxxx-Xxxxx Group III, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, V.P.
7
XXXXXX-XXXXX REAL ESTATE FUND IV, L.P.
By: Xxxxxx-Xxxxx Group IV, L.P.,
its General Partner
By: Xxxxxx-Xxxxx Group IV, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, X.X.
XXXXXX-XXXXX REAL ESTATE PARALLEL
FUND IV, L.P.
By: Xxxxxx-Xxxxx Group IV, L.P.,
its General Partner
By: Xxxxxx-Xxxxx Group IV, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, X.X.
XXXXXX-XXXXX CAPITAL REAL ESTATE
FUND IV, L.P.
By: Xxxxxx-Xxxxx Group IV, L.P.,
its General Partner
By: Xxxxxx-Xxxxx Group IV, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, V.P.
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EXHIBIT A
PARTNERS
NAME AND ADDRESS PERCENTAGE INTEREST
Xxxxxxx Harrisburg General Partner Inc. 1.000000%
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Xxxxxx-Xxxxx Real Estate Fund III, L.P. 49.102833%
000 Xxxxx Xxxx Xxxxx Xxxxxxxx 000
Xxxxx, XX 00000
Xxxxxx-Xxxxx Real Estate Parallel Fund III, L.P. 1.105750%
000 Xxxxx Xxxx Xxxxx Xxxxxxxx 000
Xxxxx, XX 00000
Xxxxxx-Xxxxx Capital Real Estate Fund III, L.P. 7.252917%
000 Xxxxx Xxxx Xxxxx Xxxxxxxx 000
Xxxxx, XX 00000
Xxxxxx-Xxxxx Real Estate Equity Fund III, L.P. 2.538500%
000 Xxxxx Xxxx Xxxxx Xxxxxxxx 000
Xxxxx, XX 00000
Xxxxxx-Xxxxx Real Estate Fund IV, L.P. 13.201500%
000 Xxxxx Xxxx Xxxxx Xxxxxxxx 000
Xxxxx, XX 00000
Xxxxxx-Xxxxx Real Estate Parallel Fund IV, L.P. 0.303000%
000 Xxxxx Xxxx Xxxxx Xxxxxxxx 000
Xxxxx, XX 1908
Xxxxxx-Xxxxx Capital Real Estate Fund IV, L.P. 1.495500%
000 Xxxxx Xxxx Xxxxx Xxxxxxxx 000
Xxxxx, XX 00000
Xxxxxxx Harrisburg Limited Partnership, LP 24.000000%
00 Xxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000
--------------
Total 100.0000%
=========
EXHIBIT B
ASSIGNMENT OF PARTNERSHIP INTERESTS
For valuable consideration, the undersigned Transferors hereby
assign to ____________________, a _____________, all of the Transferors' rights
as partners under the Agreement of Limited Partnership Agreement ("Mall
Partnership Agreement") of Xxxxxxx Xxxxxx Xxxxx Harrisburg LP, a Pennsylvania
limited partnership (the "Mall Partnership"), and the Transferee hereby accepts
such assignment and delegation and assumes the obligations of the Transferors
under the Mall Partnership Agreement. The foregoing assignment is made without
covenant, warranty or representation of any nature except as expressly stated in
that certain Agreement dated _________, 2004 between Transferors, Xxxxxxx
Harrisburg General Partner Inc. as the general partner, Xxxxxxx Harrisburg
Limited Partnership, LP, Xxxxxxx Equities Operating Partnership LP, and Xxxxxxx
Holdings Business Trust I, a Massachusetts business trust.
Dated: ___________, 200_
TRANSFERORS:
XXXXXX-XXXXX REAL ESTATE FUND III, L.P.
By: Xxxxxx-Xxxxx Group III, L.P.,
its General Partner
By: Xxxxxx-Xxxxx Group III, LLC,
its General Partner
By:
---------------------------
Xxxxxx X. Xxxxxx, X.X.
XXXXXX-XXXXX REAL ESTATE PARALLEL
FUND III, L.P.
By: Xxxxxx-Xxxxx Group III, L.P.,
its General Partner
By: Xxxxxx-Xxxxx Group III, LLC,
its General Partner
By:
---------------------------
Xxxxxx X. Xxxxxx, X.X.
XXXXXX-XXXXX CAPITAL REAL ESTATE
FUND III, L.P.
By: Xxxxxx-Xxxxx Group III, L.P.,
its General Partner
By: Xxxxxx-Xxxxx Group III, LLC,
its General Partner
By:
---------------------------
Xxxxxx X. Xxxxxx, X.X.
XXXXXX-XXXXX REAL ESTATE EQUITY FUND III, L.P.
By: Xxxxxx-Xxxxx Group III, L.P.,
its General Partner
By: Xxxxxx-Xxxxx Group III, LLC,
its General Partner
By:
---------------------------
Xxxxxx X. Xxxxxx, X.X.
XXXXXX-XXXXX REAL ESTATE FUND IV, L.P.
By: Xxxxxx-Xxxxx Group IV, L.P.,
its General Partner
By: Xxxxxx-Xxxxx Group IV, LLC,
its General Partner
By:
---------------------------
Xxxxxx X. Xxxxxx, X.X.
XXXXXX-XXXXX REAL ESTATE PARALLEL
FUND IV, L.P.
By: Xxxxxx-Xxxxx Group IV, L.P.,
its General Partner
By: Xxxxxx-Xxxxx Group IV, LLC,
its General Partner
By:
---------------------------
Xxxxxx X. Xxxxxx, X.X.
XXXXXX-XXXXX CAPITAL REAL ESTATE FUND IV, L.P.
By: Xxxxxx-Xxxxx Group IV, L.P.,
its General Partner
By: Xxxxxx-Xxxxx Group IV, LLC,
its General Partner
By:
---------------------------
Xxxxxx X. Xxxxxx, V.P.
EXHIBIT C
EXPANSION SITE
