EXHIBIT 10.9
EXECUTION
IRREVOCABLE CONTRIBUTION AGREEMENT
This IRREVOCABLE CONTRIBUTION AGREEMENT made as of August 13, 2004
(this "Agreement"), by and among:
(a) XXXXXXXX XXXXXXX, an individual ("Contributing Member");
(b) XXXXXXX EQUITIES OF ARIZONA, LLC, an Arizona limited liability
company ("FEA");
(c) XXXXXXX EQUITIES OPERATING PARTNERSHIP, LP, a Delaware limited
partnership (the "Partnership");
(d) XXXXXXX HOLDINGS BUSINESS TRUST I, a Massachusetts business trust
(the "General Partner"); and
(e) XXXXXXX MALL PROPERTIES, INC., a Maryland corporation ("FMP").
RECITALS:
A. Contributing Member is the owner and holder of (collectively, the
"Contributed Stock"): (i) 510 shares of common stock, par value $0.01 per
share of Xxxxxxx Pads Partner Inc., an Arizona corporation ("Pads"); and
(ii) 510 shares of common stock, par value $0.01 per share of Xxxxxxx Mall
Partners Inc., an Arizona corporation (collectively, with Pads, the "GP
Corps").
B. Contributing Member desires to contribute and transfer the Contributed
Stock to FEA in exchange for an assignment by FEA to Contributing Member of
the LF OP Units (hereinafter defined) and FEA desires to assign to
Contributing Member the LF OP Units and accept the contribution and
transfer of the Contributed Stock on the terms set forth herein.
C. Contributing Member, the Partnership and FEA now wish to confirm and
memorialize in writing their agreement relating to the contribution of the
Contributed Stock and the assignment of the LP OP Units.
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Contribution and LF OP Units.
1.1 Contribution by Contributing Member. On the terms hereof and subject to
the conditions contained herein, Contributing Member hereby agrees to
assign the Contributed Stock to FEA in exchange for an assignment by
FEA to Contributing Member of the LF OP Units and FEA desires to accept
the contribution of the Contributed Stock and assign to Contributing
Member the LF OP Units (the contribution of the Contributed Stock and
assignment of the LF OP Units, collectively referred to as the
"Contribution").
1.2 Closing Date. The Contribution shall take place on the date designated
by FEA by notice to the Contributing Member (the "Closing Date");
provided that such date shall be subsequent to, but not more than five
days following, the date on which all of the conditions precedent set
forth herein have been satisfied or waived.
1.3 Assumption of LP Agreement; Consent of the General Partner.
(a) Effective as of the Closing Date, Contributing Member accepts the
assignment of the LF OP Units from FEA and accepts and adopts the
provisions of the LP Agreement and assumes all of the duties and
obligations of a Limited Partner (as defined in the LP Agreement)
relating to the LF OP Units, as of the Closing Date.
(b) On the terms hereof and subject to the conditions precedent
contained herein, the General Partner:
(i) consents to the transfer of the LF OP Units to Contributing
Member as required pursuant to Section 11.3A of the LP
Agreement;
(ii) confirms that, notwithstanding the terms of Section
11.3C(iii) of the LP Agreement, the transfer of the LF OP
Units to Contributing Member shall be effective as of the
Closing Date;
(iii) confirms that it is has elected not to exercise its right
to require the opinion of counsel described in Section
11.3E of the LP Agreement;
(iv) acknowledges that this Agreement satisfies all of the
requirements of the LP Agreement to fully accomplish the
transfer of the LF OP Units and confirms that Contributing
Member has been admitted as a Substituted Limited Partner
(as defined in the LP Agreement); and
(v) agrees to xxxx the records of the Partnership to reflect
(x) Contributing Member as the owner of the LF OP Units and
to eliminate FEA from such records as to the LF OP Units;
and (y) that any and all notices relating to the LF OP
Units shall be given to Contributing Member in accordance
with the LP Agreement as follows:
Xxxxxxxx Xxxxxxx
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
1.4 Certain Definitions. As used herein:
(a) "Available Equity Securities" means the aggregate number of OP
Units and shares of common stock ("Common Shares"), par value
$0.01 per share of FMP available for allocation to the
Contributors on the closing of the IPO pursuant to the agreements
listed on Schedule 1 hereto;
(b) "Contributors" means (i) Contributing Member, Xxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxxx Partners, LLC, an Arizona limited liability
company, and Xxxxxxx Xxxxxx (each a "Member"); (ii) members of a
Member's immediate family; (iii) a trust held for the benefit of
a Member and/or such Member's immediate family; and (iv) an
entity that is wholly-owned (directly or indirectly) by a Member
and/or such Member's immediate family;
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(c) "LF OP Units" means an amount of OP Units equal to 7.0261% of the
Available Equity Securities (rounded to the nearest whole OP
Unit);
(d) "IPO" means the underwritten initial public offering of FMP of
its Common Shares pursuant to an effective registration statement
filed with the Securities Exchange Commission;
(e) "LP Agreement" means that certain First Amended and Restated
Agreement of Limited Partnership of Xxxxxxx Equities Operating
Partnership, LP to be dated as of the date of the IPO closing;
and
(f) "OP Units" means common units of limited partner interest in the
Partnership.
1.5 Additional Documents.
(a) On the date hereof, Contributing Member shall deliver to the
Partnership and FEA a duly completed and executed Form W-9,
FIRPTA Affidavit and Accredited Investor Questionnaire, each in
the form attached as Exhibit A to this Agreement (this Agreement,
the Accredited Investor Questionnaire, Form W-9 and FIRPTA
Affidavit collectively referred to as, the "Subscription
Documents").
(b) On the Closing Date, (i) the Partnership, FMP and Contributing
Member shall execute a Tax Protection Agreement; and (ii) FMP and
Contributing Member shall execute a Registration Rights
Agreement, in each case, substantially in the form of the draft
dated August 13, 2004, with such modifications as FMP and/or the
Partnership deem necessary in their respective sole discretion.
2. Representations, Warranties and Covenants of Contributing Member.
Contributing Member hereby acknowledges, represents and warrants to,
and covenants and agrees with FEA, the General Partner, the Partnership
and FMP that (and each representation and warranty set forth below
shall be deemed remade as of the Closing Date):
2.1 Approval of LP Agreement and FMP Organizational Documents. Contributing
Member has reviewed and approved the forms of the LP Agreement, the
Charter and by-laws of FMP (as amended from time to time, collectively,
the "FMP Organizational Documents"), and Contributing Member consents
to any changes to the LP Agreement and/or the FMP Organizational
Documents approved by FMP.
2.2 Uncertainty as to Amount or Value of Available Equity Securities and LF
OP Units.
(a) As of the date of this Agreement, neither FEA, the General
Partner, the Partnership nor FMP knows the number or value of the
Available Equity Securities and, accordingly, the number or value
of the LF OP Units.
(b) The number and value of the Available Equity Securities and LF OP
Units will depend on a number of factors, including possible
acquisitions that the Partnership or an affiliate thereof may
accomplish, the valuation that is eventually achieved by FMP in
the IPO, and prevailing market and other conditions.
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2.3 Authority; Authorization; Execution and Delivery.
(a) Contributing Member has full power and authority to enter into
the Subscription Documents and to consummate the transactions
contemplated by this Agreement.
(b) The execution and delivery of the Subscription Documents by
Contributing Member and the consummation by Contributing Member
of the transactions contemplated by the Subscription Documents
have been duly authorized by all necessary action on the part of
Contributing Member and will not constitute or result in a breach
or default under, or conflict with or violate, any agreement or
other undertaking, to which Contributing Member is a party or by
which Contributing Member is bound or with any judgment, decree,
statute, order, rule or regulation applicable to Contributing
Member or Contributing Member's assets, and, if Contributing
Member is not an individual, will not violate any provisions of
the organizational or other formation or governing documents of
Contributing Member.
(c) The Subscription Documents have been duly executed and delivered
by Contributing Member and constitute valid and legally binding
obligations of Contributing Member, enforceable against
Contributing Member in accordance with and subject to their
respective terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights
and general principles of equity. The signatures on the
Subscription Documents are genuine, and the signatory, if
Contributing Member is an individual, has legal competence and
capacity to execute the same, or, if Contributing Member is not
an individual, the signatory has been duly authorized to execute
the same on behalf of Contributing Member.
2.4 Purchase for Investment.
(a) Contributing Member is acquiring the LF OP Units for Contributing
Member's own account (or if Contributing Member is a trustee, for
a trust account) for investment only, and not with a view to or
for sale in connection with any distribution of all or any part
of such LF OP Units (or Common Shares issued by FMP to
Contributing Member in connection with a Redemption (as defined
in the LP Agreement) (such Common Shares, "Redemption Shares")).
(b) Contributing Member hereby agrees that Contributing Member shall
not, directly or indirectly, transfer all or any part of such LF
OP Units or Redemption Shares (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of all or any part
of the LF OP Units or Redemption Shares) except in accordance
with (i) the registration provisions of the Securities Act of
1933, as amended (the "Securities Act"), and the regulations
thereunder or an exemption from such registration provisions;
(ii) any applicable state or non-U.S. securities laws; (iii) the
terms of this Agreement; and (iv) the LP Agreement or the FMP
Organizational Documents, as applicable.
(c) Contributing Member understands that (i) Contributing Member must
bear the economic risk of an investment in the LF OP Units and
Redemption Shares for an indefinite period of time because, among
other reasons, the transfer of the LF OP Units and Redemption
Shares have not been registered under the Securities Act and,
therefore, the Redemption Shares and LF OP Units cannot be sold
unless such resale is subsequently registered under the
Securities Act or an exemption from such registration is
available; and (ii) sales or transfers of the LF OP Units and
Redemption Shares are further restricted by the provisions of the
LP Agreement or the FMP Organizational Documents, as applicable,
and may be restricted by other applicable securities laws. If at
any time the LF OP Units or Redemption Shares are evidenced by
certificates or other documents, each such certificate or other
document shall contain a legend stating that (x) the LF OP Units
or Redemption Shares, as applicable, (1) have not been registered
under the Securities Act or the securities laws of any state; (2)
have been issued pursuant to a claim of exemption from the
registration provisions of the Securities Act and any state
securities law which may be applicable; and (3) may not be sold,
transferred or assigned without compliance with the registration
provisions of the Securities Act and the regulations thereunder
and any other applicable Federal or state securities laws or
compliance with applicable exemptions therefrom; and (y) sale,
transfer or assignment of such LF OP Units or Redemption Shares,
as applicable, is further subject to restrictions contained in
the LP Agreement or the FMP Organizational Documents, as
applicable, and such LF OP Units or Redemption Shares may not be
sold, transferred or assigned unless and to the extent permitted
by, and in accordance with, the provisions of the LP Agreement or
the FMP Organizational Documents, as applicable.
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2.5 Information.
(a) Contributing Member has carefully reviewed this Agreement, the
forms of the LP Agreement, the Charter and by-laws of FMP.
Contributing Member has been provided an opportunity to ask
questions of, and Contributing Member has received answers
thereto satisfactory to Contributing Member from, FEA, the
General Partner, the Partnership and FMP or their respective
representatives regarding the terms and conditions of the
transfer of the LF OP Units, and Contributing Member has obtained
all additional information requested by Contributing Member of
FEA, the General Partner, the Partnership and FMP and their
respective representatives to verify the accuracy of all
information furnished to Contributing Member regarding the
transfer of the LF OP Units.
(b) Contributing Member is not relying on FEA, the General Partner,
the Partnership or FEA or any of their respective subsidiaries,
affiliates or any of their respective representatives or agents
with respect to any tax or other economic considerations involved
in connection with the LF OP Units or Redemption Shares.
(c) Contributing Member has been advised to consult with his or its
tax, legal and other advisors regarding the transfer of the LF OP
Units and its effects, the tax consequences of making and not
making a subscription hereunder, and has obtained, in
Contributing Member's judgment, sufficient information to
evaluate the merits and risks of such subscription and
investment.
(d) Contributing Member has not been furnished with and has not
relied on any oral or written representation from any party other
than his or its advisors in connection with the transfer of the
LF OP Units that is not contained in this Agreement.
2.6 Economic and Liquidity Risk.
(a) Contributing Member has such knowledge and experience in
financial and business matters such that Contributing Member is
capable of evaluating the merits and risks of making a
subscription for the LF OP Units, and that Contributing Member
has evaluated the risks of investing in the LF OP Units and has
determined that they are a suitable investment for Contributing
Member.
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(b) Contributing Member understands that an investment in the LF OP
Units or Redemption Shares is a speculative investment that
involves very significant risks and tax uncertainties and that
Contributing Member is prepared to bear all of the economic, tax
and other risks of an investment in the LF OP Units or Redemption
Shares for an indefinite period of time, and is able to withstand
a total loss of Contributing Member's investment in the LF OP
Units or Redemption Shares.
(c) Contributing Member has adequate net worth and no need for
liquidity in his investment in the LF OP Units or Redemption
Shares.
2.7 Eligibility; Accredited Investor Status. Contributing Member is an
"accredited investor" as defined in Regulation D under the Securities
Act. Contributing Member will, upon request, execute, deliver and/or
provide any additional documents deemed by the General Partner, the
Partnership or FMP to be necessary or desirable to confirm Contributing
Members such status.
2.8 Ownership of the Contributed Stock.
(a) Contributing Member has good and marketable title to the
Contributed Stock, free and clear of all pledges, claims, liens,
restrictions, charges, encumbrances, security interests,
conditional sales agreements and other obligations of any kind or
nature. Contributing Member shall not sell, convey, assign or
otherwise transfer all or any portion of the Contributed Stock
prior to the Closing Date.
(b) Contributing Member is not and will not be (i) an "employee
benefit plan" within the meaning of Section 3(3) of ERISA,
whether or not subject to ERISA, (ii) a "plan" within the meaning
of Section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code"), or (iii) any person or entity whose assets include
or are deemed to include the assets of any such "employee benefit
plan" or "plan" by reason of Section 2510.3-101 of the
Regulations of the U.S. Department of Labor or otherwise.
Contributing Member will, upon request, execute, deliver and/or
provide any additional documents deemed by the General Partner,
the Partnership, FMP or FEA to be necessary or desirable to
confirm the foregoing.
2.9 Residence; Etc. The signature pages attached to this Agreement
correctly set forth
(a) if Contributing Member is a natural person, the principal
residence of Contributing Member;
(b) if Contributing Member is a corporation, partnership, limited
liability company, business trust or other entity (an "Entity"),
the place of business (or, if there is more than one place of
business, the chief executive office) of Contributing Member;
(c) if Contributing Member is an Entity other than a general
partnership, the state of incorporation, organization or
formation of Contributing Member;
(d) if Contributing Member is a trust (other than a business trust),
the principal residence and place of business (or, if there is
more than one place of business, the chief executive office) of
each trustee of Contributing Member that is a natural person; and
(e) if Contributing Member is a trust (other than a business trust),
the place of business (or, if there is more than one place of
business, the chief executive office) and state of incorporation,
organization or formation of each trustee of Contributing Member
that is an Entity.
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2.10 Status as Foreign Person. Contributing Member is not a foreign person
and is not owned directly or indirectly, in whole or in part, by a
foreign person as determined for purposes of Section 1445 of the Code,
and the regulations promulgated thereunder.
2.11 Continuing Efforts. Subject to the terms and conditions herein
provided, Contributing Member covenants and agrees to use its best
efforts to take, or cause to be taken, all actions and do, or cause to
be done, all things necessary, proper and/or appropriate to consummate
and make effective the transactions contemplated by this Agreement.
2.12 No Brokers or Finders. Contributing Member has not entered into any
agreement and is not otherwise liable or responsible to pay any
brokers' or finders' fees or expenses to any person or Entity with
respect to this Agreement or the LF OP Units.
3. Representations, Warranties and Covenants of FEA. FEA hereby
acknowledges, represents and warrants to, and covenants and agrees
with, Contributing Member that (and each representation and warranty
set forth below shall be deemed remade as of the Closing Date):
3.1 Authority; Authorization; Execution and Delivery.
(a) FEA has full power and authority to enter into this Agreement and
to consummate the transactions contemplated herein.
(b) The execution and delivery of this Agreement and the consummation
by FEA of the transactions contemplated herein have been duly
authorized by all necessary action on the part of FEA.
(c) This Agreement has been duly executed and delivered by FEA and
constitutes the valid and legally binding obligations of FEA,
enforceable against FEA 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.
3.2 LF OP Units. Immediately prior to the Redemption, FEA will own the LF
OP Units, free and clear of all liens, claims and encumbrances.
3.3 Commercially Reasonable Efforts. Subject to the terms and conditions
herein provided, FEA covenants and agrees to use commercially
reasonable efforts to take, or cause to be taken, all actions and do,
or cause to be done, all things necessary, proper and/or appropriate to
consummate and make effective the transactions contemplated by this
Agreement.
4. Survival. The representations, warranties, covenants and agreements
contained in this Agreement and the Accredited Investor Questionnaire
shall survive the consummation of the transactions contemplated herein.
5. Conditions to Consummation by FEA. The obligations of FEA to consummate
the Redemption are subject to the fulfillment of the conditions set
forth in this Article 5, any one or more of which may be waived by the
Partnership:
5.1 Closing of the IPO. The closing of the IPO shall have occurred.
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5.2 Mutual Performance. The mutual performance by the relevant parties of
their obligations contained in the Subscription Agreement described in
Schedule 1.
5.3 Representations, Warranties and Covenants. The representations and
warranties of Contributing Member contained in this Agreement shall be
true, correct and complete in all material respects on and as of the
Closing Date with the same force and effect as though made on and as of
such date unless expressly stated herein to be made as of a specified
date. Contributing Member shall have performed in all material respects
all obligations required to be performed by him or it under this
Agreement at or prior to the Closing Date.
5.4 Non-Exercise of Alternative Transaction Election. The Partnership shall
not have made the Alternative Transaction Election (hereinafter
defined).
5.5 Closing Documents. Contributing Member shall have duly executed and
delivered to FEA on or prior to the Closing Date all documents that are
reasonably requested by FEA to effectuate the transactions contemplated
hereby, including but not limited to the Subscription Documents.
6. Conditions to Consummation by Contributing Member. The obligations of
Contributing Member to consummate the Contribution and receive the LF
OP Units pursuant to this Agreement are subject to the fulfillment of
the following conditions(which may be waived by him or it):
6.1 Mutual Performance. The mutual performance by the relevant parties of
their obligations contained in the Subscription Agreement described in
Schedule 1.
6.2 Representations, Warranties and Covenants. The representations and
warranties of FEA contained herein shall be true, correct and complete
in all material respects on and as of the Closing Date with the same
force and effect as though made on and as of such date unless expressly
stated therein to be made as of a specified date. FEA shall have
performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date.
7. Indemnity.
7.1 Contributing Member hereby agrees to indemnify and defend the General
Partner, the Partnership, FEA and FMP and their respective direct and
indirect partners, members, shareholders, officers, directors and
affiliates (each, an "Indemnified Party") against and to hold them
harmless from any and all damage, loss, liability and expense incurred
or suffered by any Indemnified Party arising out of or based upon the
inaccuracy of any representation or warranty or breach of any covenant
or agreement made or to be performed by Contributing Member pursuant to
the Subscription Documents.
7.2 FEA hereby agrees to indemnify and defend the Contributing Member
against any and all damage, loss, liability and expense incurred or
suffered by it or him out of or based upon the inaccuracy of any
representation or warranty or breach of any agreement made or to be
performed by FEA pursuant to this Agreement.
8. Power of Attorney; Amendments to Operating Agreement and LP Agreement.
By executing this Agreement, Contributing Member hereby irrevocably
constitutes and appoints the General Partner (or a substitute appointed
by the Partnership) as his or its attorney-in-fact and agent with full
power of substitution to take any and all actions and execute the LP
Agreement and any and all such amendments to the LP Agreement and any
other document and agreement relating to the LF OP Units or this
Agreement, on Contributing Member's behalf and in Contributing Member's
name, as the Partnership may deem necessary or desirable.
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9. Alternative Transaction.
9.1 Notwithstanding anything contained herein, in lieu of the Contribution,
the Partnership may, in its sole discretion, elect to cause the GP
Corps to be acquired by FEA or its designee (the "Alternative
Transaction Election") through merger, consolidation, acquisition,
share exchange or other similar transaction (the "Alternative
Transaction"), pursuant to which FMP will issue to Contributing Member,
in lieu of the OP Units, a number of Common Shares equal to the number
of LF OP Units that Contributing Member would have received had the
Contribution been consummated. The Partnership shall effect the
Alternative Transaction Election by providing written notice to the
Contributing Member at any time prior to the Closing Date. The right of
the Partnership to make the Alternative Transaction Election shall be
subject to the satisfaction of each of the following: (x) the
Partnership determines that the consummation of the Alternative
Transaction would not require the consent of any third party (other
than FEA, the General Partner, FMP, the Partnership or their respective
affiliates), which consent is not obtained on or prior to the Closing
Date, or constitute or result in a breach or default under, or conflict
with or violate, any agreement or other undertaking, to which
Contributing Member, the GP Corps or any of their respective affiliates
are party or by which Contributing Member, the GP Corps or any of their
respective affiliates are bound; or (y) the Alternative Transaction is
reasonably likely not to result in the recognition of gain or loss for
federal income tax purposes for the Contributing Member.
9.2 If Partnership makes the Alternative Transaction Election as permitted
herein, the Contributing Member consents to the Alternative Transaction
and agrees to take, or cause to be taken, all actions and do, or cause
to be done, all things necessary, proper and/or appropriate to
consummate and make effective the Alternative Transaction
10. Termination. This Agreement shall terminate automatically if the
Closing Date has not occurred within two years after the date of this
Agreement.
11. General Provisions.
11.1 Modification. Neither this Agreement nor any provisions hereof shall be
waived, modified, discharged or terminated except by an instrument in
writing signed by the party against whom any waiver, modification,
discharge or termination is sought; provided that Contributing Member
hereby agrees to future modifications of this Agreement as may be
reasonably proposed by FEA, the General Partner, the Partnership or
FMP, provided that such modifications do not have any negative impact
on the tax position of Contributing Member.
11.2 Notices. All notices, requests and other communications hereunder must
be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first
class postage prepaid) to the parties at the following addresses or
facsimile numbers:
If to Contributing Member: Xxxxxxxx Xxxxxxx
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
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If to the General Partner, Insert applicable addressee:
Partnership, FEA or FMP: [Xxxxxxx Holdings Business Trust I]
[Xxxxxxx Equities Operating Partnership, LP]
[Xxxxxxx Mall Properties, Inc.]
[Xxxxxxx Equities of Arizona, LLC]
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: 000-000-0000
in each case, with a copy to:
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxx, Esq.
Facsimile: 000-000-0000
All such notices, requests and other communications will (a) if delivered
personally to the applicable addressees as provided in this Section 11.2, be
deemed given upon delivery; (b) if delivered by facsimile transmission to the
applicable facsimile numbers as provided in this Section 11.2, be deemed given
upon receipt; and (c) if delivered by mail to the applicable addressees as
provided in this Section 11.2, be deemed given upon receipt or refusal (in each
case regardless of whether such notice, request or other communication is
received by any other Entity or person to whom a copy of such notice is to be
delivered pursuant to this Section 11.2). Any party from time to time may change
its address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other parties hereto
in accordance with this Section 11.2.
11.3 Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties and their
heirs, executors, administrators, successors, legal representatives and
permitted assigns. If Contributing Member is itself more than one
person, the obligations of such persons shall be joint and several and
the acknowledgements, representations, warranties, covenants and
agreements herein contained shall be deemed to be made by and be
binding upon each such person and his or her heirs, executors,
administrators, successors, legal representatives and permitted
assigns.
11.4 Entire Agreement. The Subscription Documents and the documents referred
to therein contain the entire agreement of the parties with respect to
the Redemption and the subscription by Contributing Member of the LF OP
Units, and there are no representations, warranties, covenants or other
agreements except as stated or referred to herein or therein.
11.5 Ambiguity. The parties hereto agree that any ambiguity with respect to
the Redemption or the rights or obligations of the parties under this
Agreement shall be resolved by the Board of Directors of FMP, which
resolution shall be binding on the parties.
11.6 Assignability. This Agreement is not transferable or assignable by any
party hereto. This Agreement shall be for the benefit of the parties
hereto.
11.7 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
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11.8 Counterparts. This Agreement may be executed by facsimile signature and
through the use of separate signature pages or in counterparts, and
each of such counterparts shall, for all purposes, constitute one
agreement binding on the parties hereto, notwithstanding that the
parties hereto are not signatories to the same counterpart.
11.9 Further Assurances. Contributing Member will, from time to time,
execute and deliver to the General Partner, the Partnership, FEA and/or
FMP all such other and further instruments and documents and take or
cause to be taken all such other and further action as the General
Partner, the Partnership, FEA, and/or FMP may reasonably request in
order to effect the transactions contemplated by this Agreement.
Without limiting the foregoing, the General Partner, the Partnership or
FMP may request from Contributing Member such additional information as
it may deem necessary to evaluate the eligibility of Contributing
Member to acquire the LF OP Units, and may request from time to time
such information as it may deem necessary to determine the eligibility
of Contributing Member to hold the LF OP Units or Redemption Shares or
to enable the General Partner, the Partnership or FMP to determine
Contributing Member's compliance with applicable regulatory
requirements or tax status, and Contributing Member shall provide such
information as may reasonably be requested.
11.10 Severability. If any term or provision of this Agreement shall to any
extent be invalid or unenforceable, the remainder of this Agreement
shall not be affected thereby, and each term and provision of this
Agreement shall be valid and enforceable to the fullest extent
permitted by law. Upon the determination that any term or other
provision is invalid, illegal or incapable of being enforced, the
parties shall negotiate in good faith to modify this Agreement so as to
effect their original intent as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled
to the extent possible.
11.11 Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in
addition to any other remedy to which it may be entitled at law or in
equity, shall be entitled to compel specific performance of the
obligations of any other party under this Agreement in accordance with
the terms and conditions of this Agreement.
11.12 Expenses. Each of the parties hereto agrees to pay the expenses
incurred by it in connection with the negotiation, preparation, review,
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, including the fees and expenses of
counsel to such party.
[The remainder of this page has been intentionally left blank.]
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
THE GENERAL PARTNER: CONTRIBUTING MEMBER:
------------------- -------------------
XXXXXXX HOLDINGS BUSINESS TRUST I,
a Massachusetts business trust
By: __________________ ______________________
Name: Xxxxxxxx Xxxxxxx
Title:
THE PARTNERSHIP: FMP:
--------------- ---
XXXXXXX EQUITIES OPERATING PARTNERSHIP, LP, XXXXXXX MALL PROPERTIES, INC.,
a Delaware limited partnership a Maryland corporation
By: Xxxxxxx Holdings Business Trust I, By: ________________________
a Massachusetts business trust and its general partner Name:
Title:
By: ________________________
Name:
Title:
FEA:
----
XXXXXXX EQUITIES OF ARIZONA, LLC,
an Arizona limited liability company
By: __________________
Name:
Title:
12
EXECUTION
Schedule 1
1. Xxxxxxx Partners, LLC Redemption Agreement dated as of August 13, 2004,
among Xxxxxxx Partners, LLC, an Arizona limited liability company ("FP"),
Xxxxxxx Equities of Arizona, LLC, an Arizona limited liability company
("FEA"), Xxxxxxx Equities Operating Partnership, LP, a Delaware limited
partnership (the "Partnership"), Xxxxxxx Holdings Business Trust I, a
Massachusetts business trust (the "General Partner"), and Xxxxxxx Mall
Properties, Inc., a Maryland corporation ("FMP").
2. Recapitalization Agreement dated as of August 13, 2004, among Xxxxx Xxxxx,
Xxxxx Xxxxxx, the Partnership and FMP.
3. Subscription Agreement dated as of August 13, 2004, among the Partnership,
FMP and FEA.
4. Xxxxxx Redemption Agreement dated as of August 13, 2004, among Xxxxxxx
Xxxxxx, FEA, the Partnership, the General Partner and FMP.
5. Irrevocable Contribution Agreement dated as of August 13, 2004, among
Xxxxxxxx Xxxxxxx, the Partnership, the General Partner, FMP and FEA.
6. FEGP Merger Agreement dated as of August 13, 2004, among Xxxxxxx Equities
General Partner Inc., a Pennsylvania corporation, Xxxxxxx Equities General
Partner Merger Inc., a Pennsylvania corporation, FMP and FP.
7. FHGP Merger Agreement dated as of August 13, 2004, among Xxxxxxx Harrisburg
General Partner Inc., a Pennsylvania corporation, Xxxxxxx Harrisburg
General Partner Merger Inc., a Pennsylvania corporation, FMP and FP.
EXHIBIT A
FORM W-9
------------------------ ------------------------------------------------------------- ----------------------------------------
SUBSTITUTE Part 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT Social Security
Form W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW Number(s) or Employer
Identification Number
------------------------ ------------------------------------------------------------- ----------------------------------------
Department of Part 2 -- Certification -- Under penalties of perjury, I certify that: (1) The number shown
The Treasury on this form is my correct taxpayer identification number (or I am waiting for a number to Internal
Internal Revenue Revenue be issued to me); (2) I am not subject to backup withholding because: (a) I am exempt from
Service Service backup withholding, or (b) I have not been notified by the ("IRS") that I am subject to
backup withholding as a result of failure to report all interest or dividends, or the IRS has
notified me that I am no longer subject to backup withholding; and (3) I am a U.S. person (including
a U.S. resident alien).
------------------------ ------------------------------------------------------------- ----------------------------------------
Payer's Certification Instructions -- You must cross out item (2) Part 3 --
Request for above if you have been notified by the IRS that you are Awaiting TIN
Taxpayer subject to backup withholding because you have failed to |_|
Identification report all interest and dividends on your tax return.
Number (TIN) However, if after being notified by the IRS that you were
subject to backup withholding you received another
notification from the IRS that you are no longer subject
to backup withholding, do not cross out item (2).
------------------------ ------------------------------------------------------------- ----------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER (Applicable only if the box in Part 3 above is checked)
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have
mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service
Center or Social Security Administration office, or (b) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number within sixty days, 28 percent of all reportable payments
made to me thereafter will be withheld until I provide a taxpayer identification number.
---------------------------------------------------------------------------------------------------------------------------------
----------------------
Xxxxxxxx Xxxxxxx
Date: August 13, 2004
--------------------------------------------------------------------------------
EXHIBIT A (CONTINUED)
--------------------------------------------------------------------------------
FIRPTA AFFIDAVIT -- CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that (a) a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person and (b) a partnership must withhold tax with respect to certain amounts
that are allocable to or would otherwise be distributed to a foreign person that
owns an interest in such partnership. To inform FEA and the Partnership that
withholding of tax is not required, the undersigned hereby certifies the
following as of the date hereof and as of the Closing Date:
1. Contributing Member, if an individual, is not a nonresident
alien for purposes of U.S. income taxation, and if not an individual, is not a
foreign corporation, foreign partnership, foreign trust, or foreign estate (as
those terms are defined in the Internal Revenue Code and Income Tax
Regulations);
2. Contributing Member, if not an individual, is not a
disregarded entity as defined in Section 1.1445-2(b)(2)(iii) of the Income Tax
Regulations promulgated under the Internal Revenue Code.
3. Contributing Member's Social Security Number (for individuals) or
Employer Identification Number (for non-individuals) is: _____________; and
4. Contributing Member's address is: Xxxxxxxx Xxxxxxx, 0000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000.
In addition, Contributing Member agrees to inform FEA and the Partnership if he
or it becomes a foreign person at any time during the three year period
immediately following the date of this notice.
I understand that this certification may be disclosed to the Internal Revenue
Service by the Partnership or FEA and that any false statement I have made here
could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this certification and
to the best of my knowledge and belief it is true, correct and complete, and, if
this document is being signed on behalf of a Contributing Member that is not an
individual, I further declare that I have authority to sign this document on
behalf of Contributing Member.
----------------------
Xxxxxxxx Xxxxxxx
Date: August 13, 2004
--------------------------------------------------------------------------------
EXHIBIT A (CONTINUED)
ACCREDITED INVESTOR QUESTIONNAIRE
Contributing Member hereby represents and warrants that he, she or it
is an "Accredited Investor," as such term is defined in Rule 501 under
Regulation D of the Securities Act based upon the fact that he, she or it meets
at least one of the following requirements (check all that apply):
____ (1) he or she is a natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his or her purchase exceeds
$1,000,000; or
____ (2) he or she is a natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and who has a reasonable
expectation of reaching the same income level in the current year; or
____ (3) it is a private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940; or
____ (4) it is a bank as defined in Section 3(a)(2) of the Securities Act, or a
savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary
capacity; a broker dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934; an insurance company as defined in Section 2(13) of the
Securities Act; an investment company registered under the Investment Company
Act of 1940 or a business development company as defined in Section 2(a)(48) of
that Act; a Small Business Investment Company licensed by the United States
Small Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958; a plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, if such plan has total
assets in excess of $5,000,000; or an employee benefit plan within the meaning
of the Employee Retirement Income Security Act of 1974, if the investment
decision is made by a plan fiduciary, as defined in Section 3(21) of such Act,
which is either a bank, savings and loan association, insurance company, or
registered investment adviser, or if the employee benefit plan has total assets
in excess of $5,000,000 or, if a self-directed plan, with investment decisions
made solely by persons that are accredited investors; or
____ (5) it is an organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or Company,
not formed for the specific purpose of acquiring the LF OP Units, with total
assets in excess of $5,000,000; or
____ (6) it is a trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the LF OP Units, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii) of the
Securities Act; or
____ (7) it is an Entity in which all the equity owners are Accredited Investors
under any one of items (1) through (6) above.
Capitalized terms not defined herein shall have the meaning ascribed to such
terms in that certain Irrevocable Redemption Agreement dated as of August 13,
2004, among Xxxxxxx Equities Operating Partnership, LP, Xxxxxxxx Xxxxxxx,
Xxxxxxx Equities of Arizona, LLC, Xxxxxxx Holdings Business Trust I and Xxxxxxx
Mall Properties, Inc.
----------------------
Xxxxxxxx Xxxxxxx
Date: August 13, 2004
