EX-2 3 ex2-7.txt EXHIBIT 2.7 FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE PLYMOUTH MEETING MALL THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE ("Amendment") is made and entered into as of the 28th day of April, 2003, by and between PLYMOUTH MEETING PROPERTY, LLC, a Delaware limited liability company ("Seller"), and PR PLYMOUTH MEETING LIMITED PARTNERSHIP, a Pennsylvania limited partnership ("Buyer"). W I T N E S S E T H: WHEREAS, Seller and Buyer are parties to an Agreement of Purchase and Sale (the "Original Agreement") dated as of March 7, 2003 pursuant to which Seller has agreed to sell and Buyer has agreed to buy: certain leasehold and fee interests, buildings and improvements located in Plymouth Township, Montgomery County, Pennsylvania and forming a part of Plymouth Meeting Mall, as more fully described in, and pursuant to the terms and conditions of, the Original Agreement; and WHEREAS, Seller and Buyer desire to amend the Original Agreement pursuant to the terms of this Amendment. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows: 1. Defined Terms. Uppercase and defined terms, which are not defined in this Amendment, shall have the meaning ascribed to such terms in the Original Agreement. References to Articles and/or Sections shall correspond to Articles and Sections in the Original Agreement. Any reference in this Amendment to the Agreement shall mean the Original Agreement as modified by this Amendment. 2. Satisfaction of certain conditions. Buyer hereby acknowledges that the contingencies described in sections 7.2 and 7.3 have been satisfied and it no longer has any rights to terminate the Agreement based on those sections. 3. Alternate Agreement. Subparagraph (c) of section 3.5 shall be amended by deleting the words "March 20, 2003" and substituting in their place the words "May 23, 2003." 4. Failure to Close. Article IV of the Original Agreement is hereby deleted in its entirety and the following is substituted in its place. ARTICLE IV FAILURE TO CLOSE 4.1 Liquidated Damages. ------------------ Buyer and Seller acknowledge that the amount of damages which either party may incur as a result of a default hereunder would be substantial, but extremely difficult to ascertain. Accordingly, Buyer and Seller agree that the amount of "Liquidated Damages" as used herein shall equal Six Million Dollars ($6,000,000.00). The parties expressly agree that the Liquidated Damages were determined by the parties after negotiation, with both side represented by counsel, and that such damages are not intended as a penalty but are fairly related to the damage that the non defaulting party would suffer from the other party's breach of this Agreement. 4.2 Buyer's Default. --------------- If Seller has complied with all of the covenants and conditions contained herein and is ready, willing and able to sell and transfer the Property Assets to Buyer in accordance with this Agreement and Buyer for any reason fails to consummate this Agreement in breach of its obligations to do so, then the parties agree that Seller may, by written notice to Buyer, as its sole remedy (i) terminate this Agreement and recover from Buyer as liquidated damages an amount equal to the Liquidated Damages, together with attorney's fees and court costs, if any, incurred by Seller in obtaining payment of the Liquidated Damages, or (ii) seek specific performance in which event Seller shall be entitled to recover from Buyer any attorney's fees and court costs incurred in seeking such remedy, provided that if Seller is unable to obtain the remedy of specific performance Seller shall not have waived its right to the Liquidated Damages by electing to sue for Specific Performance. If Seller receives the Deposit, such amount shall be credited against the Liquidated Damages. 4.3 Seller's Default. ---------------- If Buyer has complied with all of the covenants and conditions contained. herein and is ready, willing and able to pay the Purchas Price to Seller and consummate the transactions contemplated hereunder in accordance with this Agreement and Seller for any reason fails to consummate this Agreement in breach of its obligations to do so, Buyer may as its sole remedy either (i) terminate this Agreement whereupon Buyer may recover from Seller as liquidated damages an amount equal to the Liquidated Damages together with attorney's fees and court costs, if any, incurred by Buyer in obtaining payment of the Liquidated Damages, or (ii) seek specific performance of the Agreement in which event Buyer shall be entitled to receive from Seller any attorney's fees and court costs incurred in seeking such remedy, provided that if Buyer is unable to obtain the remedy of specific performance Buyer shall not have waived its right to the Liquidated Damages by electing to sue for specific performance. - 2 - 4.4 Disposition of Deposit as the Result of and Lack of Satisfaction of Conditions. --------------------------------------------------- If Seller terminates this Agreement as a result of the lack of satisfaction of any one or more of the conditions to Seller's obligations set forth in Section 8.1 or elsewhere in this Agreement and the lack of satisfaction of a condition is not related to Buyer's or Buyer's Affiliates' default hereunder or under the Contract between Echelon Mall Joint Venture and Echelon Acquisition LLC and PR Echelon Limited Partnership dated March 7, 2003 (as amended contemporaneously herewith, the "Echelon Contract"), or Buyer terminates this Agreement as a result of the lack of satisfaction of any one or more of the conditions to Buyer's obligations set forth in Section 8.2 or elsewhere in this Agreement, and the lack of satisfaction of a condition is not related to Buyer's breach or default hereunder or under the Echelon Contract, then the Deposit shall be promptly returned to Buyer. 4.5 Cross Default. ------------- The parties agree that a breach by a party of the Echelon Contract shall also be a breach by such party of this Agreement. 5. Closing Date. Section 5.1 shall be amended by deleting the words "April 24" and substituting the words "May 30." In addition, both parties each shall have the right to extend Closing for a period not to exceed ten (10) business days provided, however, as a condition to either parties' right to postpone the Closing, (a) the Alternate Agreement and Leasing Agreement shall have been agreed to in final form and attached to the Agreement by amendment, and (b) the party extending Closing also shall extend the Closing under the Echelon Contract for the same number of days. 6. Mutual Representations and Warranties. Seller and Buyer represent and warrant to each other respectively that they have the requisite power and authority to enter into this Amendment; that all necessary and appropriate approvals, authorizations and other steps have been taken to effect the legality of this Amendment; that the signatories executiexecuting this Amendment on behalf of Seller and Buyer have been duly authorized and empowered to execute this Amendment on behalf of Seller and Buyer, respectively; and that this Amendment is valid and shall be binding upon and enforceable against Seller and Buyer and their respective successors and assigns and shall inure to the benefit of Seller and Buyer and their respective successors and assigns. 7. Final Agreement. This Amendment and the Original Agreement cover in full, each and every final agreement of every kind or nature whatsoever between Seller and Buyer concerning the Property Assets and all preliminary negotiations and agreements whatsoever of every kind or nature are merged in this Amendment and the Original Agreement. This Amendment and the Original Agreement cannot be - 3 - changed or modified in any manner other than by written amendment or modification executed by Seller and Buyer. Except as expressly provided for herein or where the context requires to conform the terms and conditions of the Original Agreement to the above, the terms and conditions of the Original Agreement shall remain unmodified and are hereby ratified and confirmed. 8. Counterparts. This Amendment may be executed simultaneously or in two (2) or more counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument. IN WITNESS WHEREOF the parties hereto have executed this Amendment as of the date first above written, but intended to be effective as of the Effective Date. ATTEST: SELLER: PLYMOUTH MEETING PROPERTY, LLC M. LUCINDA MOTSKO By: ANDREW B. BOLTON --------------------- ---------------------------------- M. Lucinda Motsko Andrew B. Bolton III Assistant Secretary Vice President BUYER PR PLYMOUTH MEETING LIMITED PARTNERSHIP, a Pennsylvania limited partnership By: PR PLYMOUTH MEETING LLC, its general partner By: PREIT Associates, L.P., its sole member By: Pennsylvania Real Estate Investment Trust, its general partner Witness: DANIEL J. IZLER By: JEFFREY A. LINN ----------------------------- ---------------------------------- Daniel J. Izler Jeffrey A. Linn, Executive Vice President - 4 -