Exhibit 99.4
FORM OF
VOTING AGREEMENT
[NAME OF TRUSTEE]
THIS VOTING AGREEMENT (this "Agreement") is entered into as of May 13,
2003 by and among, Crown American Realty Trust, a Maryland real estate
investment trust ("Crown"), and Crown American Properties, L.P., a Delaware
limited partnership ("Crown Partnership") and [NAME OF TRUSTEE] (the "PREIT
Securityholder").
WHEREAS, Pennsylvania Real Estate Investment Trust, a Pennsylvania
business trust ("PREIT"), PREIT Associates, L.P., a Delaware limited partnership
("PREIT Partnership"), Crown and Crown Partnership have entered into an
Agreement and Plan of Merger dated as of the date hereof (the "Merger
Agreement"), pursuant to which, among other things, Crown will merge with and
into PREIT (the "Merger"), with PREIT continuing as the surviving entity of the
Merger, and PREIT Partnership and Crown Partnership will consummate certain
transactions contemplated in connection with the Merger, all upon the terms and
subject to the conditions set forth in the Merger Agreement (capitalized terms
used but not defined herein shall have the meanings set forth in the Merger
Agreement);
WHEREAS, if and to the extent the PREIT Securityholder owns and has
sole voting power or sole power to control the voting of any shares of
beneficial interest, par value $1.00 per share, of PREIT ("PREIT Common Shares")
on the date of the PREIT shareholders meetings described in Section 2(a)
(including any such PREIT Common Shares acquired upon the exercise of any
options which have been or may in the future be granted to the PREIT
Securityholder) (any such PREIT Common Shares owned by the PREIT Securityholder
on the date of the PREIT shareholders meetings described in Section 2(a) as to
which the PREIT Securityholder has sole voting power or sole power to direct the
voting of, and the associated rights issued pursuant to that certain Rights
Agreement dated as of April 30, 1999 between PREIT and American Stock Transfer &
Trust Company, as rights agent, being referred to herein as the "Covered PREIT
Common Shares"), he has agreed to vote such shares as set forth herein;
WHEREAS, in connection with and as an inducement to Crown and Crown
Partnership to enter into the Merger Agreement, the PREIT Securityholder desires
to execute and deliver this Agreement in such person's capacity as the owner
with sole voting power or sole power to direct the voting of the Covered PREIT
Common Shares (if any).
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree, intending to be legally bound hereby, as
follows:
SECTION 1. Voting of PREIT Common Shares
(a) During the period from the execution and delivery by the parties of
this Agreement through the earlier of (i) the effective time of the Merger or
(ii) the termination of the Merger Agreement in accordance with the terms
thereof (such period hereinafter referred to as the "Term"), the PREIT
Securityholder shall not, directly or indirectly, and shall cause each record
holder of any of the Covered PREIT Common Shares not to, directly or indirectly,
(A) grant any proxies for any Covered PREIT Common Shares with respect to any
matters described in paragraph (a) of Section 2 hereof (other than a proxy
directing the holder thereof to vote the Covered PREIT Common Shares in a manner
required by paragraph (a) of Section 2 hereof), (B) deposit any Covered PREIT
Common Shares into a voting trust or enter into a voting agreement with respect
to any Covered PREIT Common Shares with respect to any of the matters described
in paragraph (a) of Section 2 hereof (other than a voting agreement under which
the applicable parties agree to vote the Covered PREIT Common Shares in a manner
required by paragraph (a) of Section 2 hereof), or tender any Covered PREIT
Common Shares in a transaction other than a transaction contemplated by the
Merger Agreement, or (C) take any action which is intended to have the effect of
preventing or disabling such PREIT Securityholder from performing such PREIT
Securityholder's obligations under this Agreement; provided, however, that
nothing herein shall prevent the sale, transfer, pledge, encumbrance, assignment
or other disposition of all or any portion of the PREIT Common Shares now owned
or hereafter acquired by the PREIT Securityholder.
(b) Notwithstanding any provisions contained in this Agreement to the
contrary, any person who acquires any PREIT Common Shares from the PREIT
Securityholder, including without limitation any lender or other third party
transferee who may acquire all or a portion of the PREIT Securityholder's PREIT
Common Shares as a result of foreclosure by the lender or the exercise of any
other remedies available to such lender with respect to the pledge, shall not be
bound by this Agreement.
(c) The parties hereby acknowledge and agree that the PREIT
Securityholder may dispose of some or all of his PREIT Common Shares prior to
the Merger. PREIT Securityholder shall not be in breach of this Agreement if, at
the time of the PREIT shareholders meetings described in Section 2(a), he does
not own any Covered PREIT Common Shares.
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SECTION 2. Voting
(a) During the Term, the PREIT Securityholder shall cast or cause to be
cast all votes attributable to the Covered Common Shares (if any) owned by the
PREIT Securityholder at the time of any annual or special meeting of
shareholders of PREIT, including any adjournments or postponements thereof, or
in connection with any written consent or other vote of PREIT shareholders, at
any annual or special meeting of shareholders of PREIT, including any
adjournments or postponements thereof, or in connection with any written consent
or other vote of PREIT shareholders, in favor of adoption of the Merger
Agreement and approval of the Merger and any other transactions contemplated by
the Merger Agreement.
(b) The PREIT Securityholder will retain the right to vote the PREIT
Securityholder's PREIT Common Shares, in the PREIT Securityholder's sole
discretion, on all matters other than those described in paragraph (a) of this
Section 2, and the PREIT Securityholder may grant proxies and enter into voting
agreements or voting trusts for the PREIT Securityholder's PREIT Common Shares
in respect of such other matters.
SECTION 3. Representations and Warranties of the PREIT
Securityholder
The PREIT Securityholder hereby represents and warrants to Crown and
Crown Partnership as follows:
(a) The PREIT Securityholder has the legal capacity, power, authority
and right (contractual or otherwise), to enter into this Agreement and to
perform its obligations hereunder. This Agreement has been duly executed and
delivered by the PREIT Securityholder and constitutes a valid and binding
obligation of the PREIT Securityholder, enforceable against the PREIT
Securityholder in accordance with and subject to its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights and general principles of equity.
(b) The execution and delivery of this Agreement and the consummation
of the transactions herein contemplated will not conflict with or violate any
court order, judgment or decree applicable to the PREIT Securityholder, or
conflict with or result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under any
contract or agreement to which the PREIT Securityholder is a party or by which
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the PREIT Securityholder is bound or affected, other than where any such
conflicts, violations, breaches or defaults would not (individually or in the
aggregate) materially and adversely affect the PREIT Securityholder's ability to
perform any of such PREIT Securityholder's obligations under this Agreement. No
consent, approval, order or authorization of, or registration, declaration or
filing with, any federal, state or local government or any court, administrative
or regulatory agency or commission or other governmental authority or agency,
domestic or foreign (a "Governmental Entity"), is required by or with respect to
the PREIT Securityholder in connection with the execution and delivery of this
Agreement by the PREIT Securityholder or the consummation by the PREIT
Securityholder of the transactions contemplated by this Agreement.
SECTION 4. Further Assurances
During the Term, the PREIT Securityholder shall make such filings as
may be required under the Securities Exchange Act of 1934, as amended, and, upon
the request of Crown, execute and deliver such documents and take such actions
as Crown may reasonably deem necessary to effectuate the purposes of this
Agreement.
SECTION 5. Interpretation
When a reference is made in this Agreement to a Section, such reference
shall be to a Section of this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
SECTION 6. Counterparts
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered to the other party.
SECTION 7. Entire Agreement; No Third Party Beneficiaries
This Agreement (including the Schedules hereto) (a) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter of this
Agreement and (b) is not intended to confer upon any Person other than the
parties hereto any rights or remedies.
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SECTION 8. Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, REGARDLESS OF THE LAWS THAT MIGHT
OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
SECTION 9. Assignment
Neither this Agreement nor any of the rights, interests or obligations
under this Agreement shall be assigned or delegated, in whole or in part, by
operation of law or otherwise by any of the parties without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective successors and assigns.
SECTION 10. Enforcement
The parties agree that irreparable damage would occur in the event that
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in any federal court located in Pennsylvania or in any state
court located in Pennsylvania this being in addition to any other remedy to
which they are entitled at law or in equity. In addition, each of the parties
hereto (a) consents to submit itself (without making such submission exclusive)
to the personal jurisdiction of any federal court located in Pennsylvania or any
state court located in Pennsylvania in the event any dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement and (b)
agrees that it will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court.
SECTION 11. Severability
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
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so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
SECTION 12. Amendment
This Agreement shall not be amended, altered, or modified except by an
instrument in writing duly executed and delivered by the party against whom
enforcement of the amendment, alteration or modification is sought.
SECTION 13. No Waiver
No delay or failure on the part of any party hereto in exercising any
right, power or privilege under this Agreement shall impair any such right,
power or privilege or be construed as a waiver of any default or any
acquiescence thereto. No single or partial exercise of any such right, power or
privilege shall preclude the further exercise of such right, power or privilege.
No waiver shall be valid against any party hereto unless made in writing and
signed by the party against whom enforcement of such waiver is sought, and then
only to the extent expressly specified therein. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 14. Capacity of PREIT Securityholder
The PREIT Securityholder has executed this Agreement solely in such
PREIT Securityholder's capacity as a securityholder of PREIT or PREIT
Partnership and not in such PREIT Securityholder's capacity as an officer,
director, trustee, employee or manager of PREIT or PREIT Partnership or any of
their Affiliates. Without limiting the foregoing, nothing in this Agreement
shall limit or affect any actions taken by such PREIT Securityholder in such
PREIT Securityholder's capacity as an officer, director, trustee, employee or
manager of PREIT or PREIT Partnership or any of their Affiliates.
SECTION 15. Termination
This Agreement shall automatically terminate upon the termination of
the Merger Agreement in accordance with the terms thereof. None of the
representations, warranties, covenants or agreements in this Agreement shall
survive the termination of this Agreement; provided, however, that nothing
contained herein shall release the PREIT Securityholder from any liability
arising from any breach of any of the PREIT Securityholder's representations,
warranties, covenants or agreements in this Agreement.
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SECTION 16. Notices
All notices, requests, claims, demands and other communications under
this Agreement shall be in writing and shall be delivered personally, sent by
overnight courier (providing proof of delivery) to the parties or sent by
telecopy (providing confirmation of transmission) at the addresses or telecopy
number (or at such other address or telecopy number for a party as shall be
specified by like notice) from such party as set forth on the address page
hereof. All notices shall be deemed given only when actually received.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Voting Agreement, or have caused this Voting Agreement to be duly executed
and delivered in their names and on their behalf, as of the date first written
above.
CROWN AMERICAN REALTY TRUST
By:
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Name:
Title:
CROWN AMERICAN PROPERTIES, L.P.
By: Crown American Realty Trust,
its general partner
By:
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Name:
Title:
Address for Notice to Crown American
Realty Trust and Crown American
Properties, L.P.:
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City State Zip Code
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[NAME OF TRUSTEE]
Address for Notice to PREIT Securityholder:
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Number Street
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City State Zip Code
Schedule of Signatories
The following is a list of the individuals who signed this form of
voting agreement:
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