EXHIBIT 10.16
EXECUTION
RECAPITALIZATION AGREEMENT
This RECAPITALIZATION AGREEMENT made as of August 13, 2004 (this
"Agreement"), by and among:
(a) XXXXX XXXXX, an individual ("JB");
(b) XXXXX XXXXXX, an individual ("SJ"; JB and SJ sometimes referred to
individually as, a "Partner" and collectively, the "Partners");
(c) XXXXXXX EQUITIES OPERATING PARTNERSHIP, LP, a Delaware limited
partnership (the "Partnership");
(d) XXXXXXX MALL PROPERTIES, INC., a Maryland corporation ("FMP").
Capitalized terms not defined herein shall have the meanings ascribed to such
terms in the Agreement of Limited Partnership of Xxxxxxx Equities Operating
Partnership, LP dated as of August 13, 2004 (the "Original Partnership
Agreement"), among Xxxxxxx Holdings Business Trust I, a Massachusetts business
trust (the "General Partner"), SJ and JB.
RECITALS:
A. The Partners are limited partners of the Partnership, parties to the
Original Partnership Agreement and each Partner currently owns a limited
partnership interest in the Partnership, including a 49.995% interest in
the capital, profits and losses of the Partnership (such partnership
interest, percentage interest and all right title and interest of each
Partner in and to the Partnership is referred to as the "Partnership
Interest").
B. An affiliate of the Partnership, FMP, is contemplating conducting an
underwritten initial public offering of its shares of common stock pursuant
to an effective registration statement filed with the Securities and
Exchange Commission (such initial public offering, the "IPO").
C. If the IPO is consummated, it is contemplated that the Partnership will be
recapitalized (the "Recapitalization"), such that: (i) the Partnership will
directly own all of the membership interests in Xxxxxxx Equities of
Arizona, LLC, an Arizona limited liability company; and (ii) the Original
Partnership Agreement will be amended and restated in its entirety.
D. The Partners desire to consent to the Recapitalization.
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. Recapitalization. The Partners hereby acknowledge and agree that upon
the effectiveness of the Recapitalization (the "Closing Date"):
1.1 the Original Partnership Agreement shall be amended and restated
(the "LP Agreement") in its entirety and the Partners hereby agree to be bound
by the LP Agreement;
1.2 on the terms hereof and subject to the conditions contained herein,
the Partnership Interest owned by JB shall henceforth be expressed as (x) a
number of OP Units (the "JB OP Units") equal to 13.31374% of the Available
Equity Securities (rounded to the nearest whole OP Unit) (hereinafter defined)
and (y) an Earnout Right (hereinafter defined); and
1.3 subject to the terms of this Agreement, the Partnership Interests
owned by SJ shall henceforth be expressed as (x) a number of OP Units (the "SJ
OP Units" and collectively with the JB OP Units, the "JB/SJ OP Units") equal to
13.31374% of the Available Equity Securities (rounded to the nearest whole OP
Unit) and (y) an Earnout Right.
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) Xxxxxxx Partners, LLC, an Arizona limited liability company, JB, SJ,
Xxxxxxxx Xxxxxxx 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; and
(c) "Earnout Right" means the right granted to each Partner to receive
additional OP Units (the "Earnout Units") from the Partnership upon the terms
and conditions set forth in Schedule 2.
2. Additional Documents.
2.1 On the date hereof, each Partner shall deliver to the Partnership
and FMP 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").
2.2 On the Closing Date, (i) the Partnership, FMP and each Partner
shall execute a Tax Protection Agreement; and (ii) FMP and each Partner 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.
3. Representations, Warranties and Covenants of the Partners. Each Partner
hereby acknowledges, represents and warrants to, and covenants and agrees with
the Partnership and FMP (in each case on such Partner's behalf, and not on the
part of the other Partner) that (and each representation and warranty set forth
below shall be deemed remade as of the Closing Date):
3.1 Approval of LP Agreement and FMP Organizational Documents. Each
Partner 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 each Partner consents to any changes to the LP
Agreement and/or the FMP Organizational Documents approved by FMP.
3.2 Uncertainty as to Amount or Value of Available Equity Securities
and JB/SJ OP Units.
(a) As of the date of this Agreement, neither FMP nor the Partnership
knows the number or value of the Available Equity Securities and, accordingly,
the number or value of the JB/SJ OP Units.
(b) The number and value of the Available Equity Securities and JB/SJ
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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3.3 Authority; Authorization; Execution and Delivery.
(a) Each Partner has full power and authority to enter into the
Subscription Documents and to consummate the transactions contemplated by the
Subscription Documents.
(b) The execution and delivery of the Subscription Documents by such
Partner and the consummation by such Partner of the transactions contemplated by
the Subscription Documents have been duly authorized by all necessary action on
the part of such Partner and will not constitute or result in a breach or
default under, or conflict with or violate, any agreement or other undertaking,
to which such Partner is a party or by which he is bound or with any judgment,
decree, statute, order, rule or regulation applicable to such Partner or his
assets.
(c) The Subscription Documents have been duly executed and delivered by
such Partner and constitute valid and legally binding obligations of such
Partner, enforceable against him 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 has legal competence and capacity to execute the same.
3.4 Purchase for Investment.
(a) Such Partner is acquiring his portion of the JB/SJ OP Units and, if
issued, Earnout Units for such Partner's own 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 OP Units or Earnout Units (or Common Shares issued by FMP to such
Partner in connection with a Redemption (as defined in the LP Agreement) (such
Common Shares, "Redemption Shares")).
(b) Such Partner hereby agrees that he shall not, directly or
indirectly, transfer all or any part of his portion of the JB/SJ OP Units,
Redemption Shares or Earnout Units (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of all or any part of the JB/SJ OP Units,
Redemption Shares or Earnout Units) 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) Such Partner understands that (i) he must bear the economic risk of
an investment in his portion of the JB/SJ OP Units, Redemption Shares and
Earnout Units for an indefinite period of time because, among other reasons, the
JB/SJ OP Units, Redemption Shares and Earnout Units have not been registered
under the Securities Act and, therefore, the JB/SJ OP Units, Redemption Shares
and Earnout Units cannot be sold unless such resale is subsequently registered
under the Securities Act or an exemption from such registration is available;
and (ii) the JB/SJ OP Units, Redemption Shares and Earnout Units 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 JB/SJ OP Units, Redemption Shares or Earnout Units are
evidenced by certificates or other documents, each such certificate or other
document shall contain a legend stating that (x) the JB/SJ OP Units, Redemption
Shares or Earnout Units, 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 the JB/SJ OP Units
or Redemption Shares or the issuance of Earnout Units, as applicable, is further
subject to restrictions contained in the LP Agreement or the FMP Organizational
Documents, as applicable, and such JB/SJ OP Units, Redemption Shares or Earnout
Units 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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3.5 Information.
(a) Such Partner has carefully reviewed this Agreement, the forms of
the LP Agreement, the Charter and by-laws of FMP. Such Partner has been provided
an opportunity to ask questions of, and such Partner has received answers
thereto satisfactory to him from, the Partnership and FMP or their respective
representatives regarding the terms and conditions of his portion of the JB/SJ
OP Units and Earnout Units, and such Partner has obtained all additional
information requested by him of the Partnership and FMP and their respective
representatives to verify the accuracy of all information furnished to such
Partner regarding his portion of the JB/SJ OP Units and Earnout Units.
(b) Such Partner is not relying on the Partnership or any of its
subsidiaries, affiliates or any of their respective representatives or agents
with respect to any tax or other economic considerations involved in connection
with his portion of the JB/SJ OP Units, Redemption Shares or Earnout Units.
(c) Such Partner has been advised to consult with his or its tax, legal
and other advisors regarding his portion of the JB/SJ OP Units and Earnout Units
and its effects, the tax consequences of making and not making a subscription
hereunder, and has obtained, in such Partner's judgment, sufficient information
to evaluate the merits and risks of such subscription and investment.
(d) Such Partner 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 his portion of the JB/SJ OP Units and Earnout Units that is not
contained in this Agreement.
3.6 Economic and Liquidity Risk.
(a) Such Partner has such knowledge and experience in financial and
business matters such that he is capable of evaluating the merits and risks of
making a subscription for his portion of the JB/SJ OP Units and Earnout Units,
and that such Partner has evaluated the risks of investing in such OP Units and
Earnout Units and has determined that they are a suitable investment for him.
(b) Such Partner understands that an investment in his portion of the
JB/SJ OP Units, Redemption Shares or Earnout Units is a speculative investment
that involves very significant risks and tax uncertainties and that such Partner
is prepared to bear all of the economic, tax and other risks of an investment in
his portion of the JB/SJ OP Units, Redemption Shares or Earnout Units for an
indefinite period of time, and is able to withstand a total loss of his
investment in such OP Units, Redemption Shares or Earnout Units.
(c) Such Partner has adequate net worth and no need for liquidity in
his investment in the JB/SJ OP Units, Redemption Shares or Earnout Units.
3.7 Eligibility; Accredited Investor Status. Such Partner is an
"accredited investor" as defined in Regulation D under the Securities Act. Such
Partner will, upon request, execute, deliver and/or provide any additional
documents deemed by the Partnership or FMP to be necessary or desirable to
confirm such Partner's status.
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3.8 Ownership of the Partnership Interests.
(a) Such Partner has good and marketable title to his Partnership
Interests, free and clear of all pledges, claims, liens, restrictions, charges,
encumbrances, security interests, conditional sales agreements and other
obligations of any kind or nature. Such Partner shall not sell, convey, assign
or otherwise transfer all or any portion of his Partnership Interests prior to
the Closing Date.
(b) Such Partner 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. Such Partner will, upon request, execute,
deliver and/or provide any additional documents deemed by the Partnership or FMP
to be necessary or desirable to confirm the foregoing.
3.9 Residence; Etc. The signature pages attached to this Agreement
correctly set forth the principal residence of such Partner.
3.10 Status as Foreign Person. Such Partner is not a foreign person as
determined for purposes of Section 1445 of the Code, and the regulations
promulgated thereunder.
3.11 Continuing Efforts. Subject to the terms and conditions herein
provided, such Partner 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.
3.12 No Brokers or Finders. Such Partner has not entered into any
agreement and is not otherwise liable or responsible to pay any brokers' or
finders' fees or expenses to any party with respect to this Agreement or his
portion of the JB/SJ OP Units.
3.13 Tax Treatment. The Partnership agrees to treat the issuance of the
Earnout Units as an adjustment to the initial consideration issued to the
Partners pursuant to this Agreement in exchange for their Partnership Interests.
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 the Partnership. The obligations of the
Partnership to accept a subscription from, and to issue the JB/SJ OP Units to
the Partners pursuant to this Agreement 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.
5.2 Representations, Warranties and Covenants. The representations and
warranties of the Partners 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. The Partners 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.
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5.3 Closing Documents. The Partners shall have duly executed and
delivered to the Partnership on or prior to the Closing Date all documents that
are reasonably requested by the Partnership to effectuate the transactions
contemplated hereby, including but not limited to the Subscription Documents.
6. Indemnity. Each Partner hereby agrees to indemnify and defend the
Partnership 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 such Partner pursuant to the
Subscription Documents.
7. Power of Attorney; Amendments to the LP Agreement. By executing this
Agreement, Redeeming 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 such Partner's
portion of the JB/SJ OP Units, on Redeeming Member's behalf and in Redeeming
Member's name, as the Partnership may deem necessary or desirable.
8. General Provisions.
8.1 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 each Partner hereby agrees to future
modifications of this Agreement as may be reasonably proposed by the Partnership
or FMP, provided that such modifications do not have any negative impact on the
tax position of such Partner.
8.2 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 the Partnership
or FMP: Insert applicable addressee:
[Xxxxxxx Equities Operating Partnership, LP]
[Xxxxxxx Mall Properties, Inc.]
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
If to JB: Xxxxx Xxxxx
00000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
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If to SJ: Xxxxx Xxxxxx
0000 Xxxxx Xxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
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.
8.3 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 Redeeming 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.
8.4 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 Redeeming Member of the Contributed OP
Units, and there are no representations, warranties, covenants or other
agreements except as stated or referred to herein or therein.
8.5 Ambiguity. The parties hereto agree that any ambiguity with respect
to the Recapitalization 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.
8.6 Assignability. This Agreement is not transferable or assignable by
any party hereto. This Agreement shall be for the benefit of the parties hereto.
8.7 Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
8.8 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.
8.9 Further Assurances. Redeeming Member will, from time to time,
execute and deliver to the Partnership 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 Partnership and/or FMP may reasonably request in order to
effect the transactions contemplated by this Agreement. Without limiting the
foregoing, the Partnership or FMP may request from Redeeming Member such
additional information as it may deem necessary to evaluate the eligibility of
Redeeming Member to acquire the Contributed OP Units, and may request from time
to time such information as it may deem necessary to determine the eligibility
of Redeeming Member to hold the Contributed OP Units or Redeeming Shares or to
enable the Partnership or FMP to determine Redeeming Member's compliance with
applicable regulatory requirements or tax status, and Redeeming Member shall
provide such information as may reasonably be requested.
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8.10 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.
8.11 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.
8.12 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.]
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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.
JB: SJ:
---------------------------- ----------------------------
Xxxxx Xxxxx Xxxxx Xxxxxx
THE PARTNERSHIP:
---------------
XXXXXXX EQUITIES OPERATING PARTNERSHIP, LP,
a Delaware limited partnership
By: Xxxxxxx Holdings Business Trust I,
a Massachusetts business trust and its general partner
By: _______________________
Name:
Title:
FMP:
XXXXXXX MALL PROPERTIES, INC.,
a Maryland corporation
By: ________________________
Name:
Title:
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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.
Schedule 2
Earnout Units
At the closing of the IPO, the agreement of limited partnership of the
Partnership shall include provisions that provide for the issuance of the
Harrisburg Earnout Units and Foothills Earnout Units to each Earnout Participant
substantially based on the following:
1. Definitions. As used herein:
(i) "Capitalized Base Rent" means the quotient obtained by dividing (x)
the average annual net base rental payable under the applicable lease for the
entire non-cancelable portion of the term thereof (excluding any initial "free
rent" period of 120 days or less) divided by (y) eight percent (8%).
(ii) "Earnout Participants" means Xxxxx Xxxxx, an individual, and Xxxxx
Xxxxxx, an individual, each an "Earnout Participant."
(iii) "Earnout Term" means the period commencing on the date of the
closing of the IPO and ending on the earliest of (A) December 31, 2009; (B) the
date of the closing of a Property Sale; and (C) the date of the closing of the
Interest Sale.
(iv) "Expansion Lease" means a lease demising all or a portion of the
Expansion Parcels.
(v) "Expansion Parcels" shall mean the Foothills Mall expansion parcels
described on Annex A attached hereto.
(vi) "Expansion Parcel Event" has the meaning set forth in Section 3.
(vii) "FMP" means Xxxxxxx Mall Properties, Inc., a Maryland
corporation, together with its subsidiaries.
(viii) "Foothills Earnout Units" means any OP Units issued to an
Earnout Participant pursuant to an Expansion Parcel Event or a Pad Event.
(ix) "Hard Costs" means the aggregate costs of all construction
materials, direct labor charges, general contractor fees (without overhead and
profit) relating to all site work, grading and utility connections.
(x) "Harrisburg Earnout Units" has the meaning set forth in Section 2.
(xi) "Harrisburg IRR" means the IRR achieved by FMP from all funds
received from the Harrisburg Partnership based on an assumed investment of
$8,485,600 from the date of the closing of the IPO through the end of the
Earnout Term, provided, however, that, (x) if any Management Fees are received
by FMP related to the Harrisburg Property; and (y) if FMP makes additional
capital contributions to or receives cash flow and/or capital distributions from
the Harrisburg Partnership, in each case, the foregoing IRR calculation shall
take the amount and date of Management Fees, capital contributions and/or cash
flow and/or capital distributions into account in determining the Harrisburg
IRR. In addition:
(1) if no Property Sale or Interest Sale has occurred prior to December
31, 2009, there shall also be included in the calculation of the Harrisburg IRR
the amount that FMP would have received under the terms of the Harrisburg
Partnership Agreement if the Harrisburg Property were sold (without any sale
expenses such as brokerage commissions, loan prepayment fees, transfer taxes or
closing costs) on December 31, 2009 for an amount equal to the Harrisburg NOI
divided by nine percent (9%) and the Harrisburg Partnership had then dissolved
and distributed all of its assets to its respective partners concurrently with
such date;
(2) if a Property Sale has occurred prior to December 31, 2009, there
shall also be included in the calculation of the Harrisburg IRR the amount of
proceeds received by FMP under the Harrisburg Partnership Agreement in
connection with such sale based on the assumption that the Harrisburg
Partnership is dissolved and all of its assets are distributed to its respective
partners concurrently with the closing of the Property Sale;
(3) if an Interest Sale has occurred prior to December 31, 2009, there
shall also be included in the calculation of the Harrisburg IRR the amount that
FMP would receive under the terms of the Harrisburg Partnership Agreement if the
Harrisburg Property were sold (without any sale expenses such as brokerage
commissions, loan prepayment fees, transfer taxes or closing costs) for an
amount equal to the purchase price that the Harrisburg Property would have to be
sold for in order for the seller in the Interest Sale to have received from such
assumed sale of the Harrisburg Property an amount equal to the purchase price
received by such seller in the Interest Sale, where the Harrisburg Partnership
is deemed to dissolve and distribute all of its assets to its respective
partners concurrently with the closing of the Interest Sale; and
(4) if both an Interest Sale and a Property Sale occur concurrently,
the foregoing calculation shall be based on the Property Sale.
(xii) "Harrisburg NOI" means the total actual property revenues of the
Harrisburg Property for calendar year 2009 (excluding non-cash income such as
straight-line rent, but including all rent that accrues to the calendar year
2009) less the Property Related Expenses.
(xiii) "Harrisburg Partnership" means Xxxxxxx Xxxxxx Xxxxx Harrisburg
LP, a Pennsylvania limited partnership, the owner of the Harrisburg Property.
(xiv) "Harrisburg Partnership Agreement" means the agreement of limited
partnership of the Harrisburg Partnership in effect as of the date of the
closing of the IPO.
(xv) "Harrisburg Property" means the land and improvements commonly
known as Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx.
(xvi) "Independent Directors" means the independent directors of the
Board of Directors of FMP as determined by the rules and regulations of the New
York Stock Exchange then in effect.
(xvii) "Interest Sale" means a sale of FMP's interest in the Harrisburg
Property or FMP's acquisition of the interests of the partnership interests of
all or substantially all of the other partners in the Harrisburg Partnership.
(xviii) "IPO" means the initial public offering of the common shares of
FMP.
(xix) "IPO Price" means the initial public offering price as shown on
the cover page of the final prospectus used in FMP's IPO as adjusted for stock
splits, special dividends or distributions or other similar adjustments to the
capital structure of FMP.
(xx) "IRR" means an internal rate of annual return (compounded
quarterly) calculated on the basis stated in the Harrisburg Partnership
Agreement, except as otherwise provided in this Agreement.
(xxi) "IRR Excess" means fifty percent (50%) of the excess, if any, of
(a) the amounts received or deemed received by FMP in calculating the Harrisburg
IRR over (b) the amounts required to be received or deemed received by FMP in
order to obtain a Harrisburg IRR of sixteen percent (16%), with such amount to
be determined upon the expiration of the Earnout Term.
(xxii) "Management Fees" means collectively, management fees, leasing
commissions and construction management fees.
(xxiii) "Lease-Up Condition" means with respect to the applicable
lease, that the tenant under such lease has taken occupancy of the space demised
thereunder and has commenced the payment of rent therefor.
(xxiv) "Pad" shall mean the Foothills Mall Pad described on Annex B
attached hereto.
(xxv) "Pad Event" has the meaning set forth in Section 3.
(xxvi) "Pad Lease" means a lease demising the Pad.
(xxvii) "Partnership" Xxxxxxx Equities Operating Partnership, a
Delaware limited partnership.
(xxviii) "Percentage Interest" means for each Earnout Participant ,
fifteen percent (15%).
(xxix) "Property Related Expenses" means all normal and customary
operating expenses of the Harrisburg Mall which are expensed for GAAP accounting
purposes, but specifically excluding: (a) any non-cash items such as
depreciation and amortization; (b) any Management Fees related to the Harrisburg
Property (whether or not such fees are payable to FMP); and (c) debt service
payments and reserves, if any.
(xxx) "Property Sale" means a sale of the Harrisburg Property.
(xxxi) "OP Units" means units of limited partner interest in the
Partnership.
2. Harrisburg Mall.
(a) NOI Calculation. Unless an Interest Sale or a Property Sale has
previously occurred, within thirty days after December 31, 2009, FMP shall
calculate the Harrisburg NOI (the "NOI Calculation") for the calendar year 2009.
(b) Review and Approval of NOI Calculation. The NOI Calculation shall
be performed by FMP's accounting staff and shall be reviewed by FMP's
independent accountants whose review shall be deemed final and binding absent
manifest error and fraud.
(c) Harrisburg Earnout Units.
(i) Within thirty (30) days after the expiration of the Earnout Term,
the Partnership shall issue to each Earnout Participant an amount of OP Units
(rounded to the nearest OP Unit), if any, equal to the product obtained by
multiplying (x) its Percentage Interest by (y) the quotient obtained by dividing
the IRR Excess by the IPO Price.
(ii) Upon distribution of Harrisburg Earnout Units hereunder, the
Partnership or FMP shall have no further obligations under this paragraph. The
additional OP Units issued hereunder shall be referred to as the "Harrisburg
Earnout Units."
(d) Property Sale and Interest Sale. Notwithstanding anything contained
herein, any decision to effect a Property Sale or Interest Sale shall be subject
to the determination by the Board of Directors of FMP (including a majority of
the Independent Directors) that the proposed transaction is on commercially
reasonable terms.
(e) Limit on Harrisburg Earnout Units. Notwithstanding anything to the
contrary contained in Section 2(c), in no event shall the number of Harrisburg
Earnout Units exceed the product obtained by multiplying (x) its Percentage
Interest by (y) the quotient obtained by dividing $6,000,000 by the IPO Price.
(f) Indebtedness Secured by Harrisburg Property. The review and
approval of the Board of Directors of FMP (including a majority of the
Independent Directors) shall be required prior to the consummation of any
borrowing by the owner of the Harrisburg Property or its partners where the
aggregate indebtedness secured by the Harrisburg Property or partnership
interests therein exceeds Forty-Three Million Sixty Thousand Dollars
($43,060,000).
(g) Issuance of Harrisburg Earnout Units. In the event Harrisburg
Earnout Units are to be issued to each Earnout Participant, the Partnership
shall promptly cause such Harrisburg Earnout Units to be issued and the
agreement of limited partnership of the Partnership shall be amended to reflect
such issuance. Each Earnout Participant shall be entitled to review and/or audit
FMP's records pertaining to calculation of the Harrisburg Earnout Units.
3. Foothills Mall.
(a) Expansion Parcels.
(i) Expansion Event. Subject to the terms of this Section 3(a), each
Earnout Participant shall receive an amount of OP Units (rounded to the nearest
OP Unit) with respect to each sale of all or a portion of the Expansion Parcels
and each Expansion Lease (each, an "Expansion Event").
(ii) Sale of Expansion Parcels. In the event of a sale of all or a
portion of the Expansion Parcels, the amount of OP Units issued to each Earnout
Participant shall equal the product obtained by multiplying (x) its Percentage
Interest by (y) the quotient obtained by dividing (A) the net purchase price for
such sale together with the assumption of any indebtedness by the purchaser by
(B) the IPO Price; provided that (I) that such sale has been determined by the
Board of Directors of FMP (including a majority of the Independent Directors) to
be on commercially reasonable terms; and (II) such sale is consummated on or
prior to December 31, 2009.
(iii) Expansion Lease. With respect to the execution of each Expansion
Lease, the amount of OP Units issued to each Earnout Participant shall equal the
product obtained by multiplying (x) its Percentage Interest by (y) the quotient
obtained by dividing (A) the positive difference, if any, between the
Capitalized Base Rent for such Expansion Lease and fifty percent (50%) of the
Hard Costs incurred by the owner of the Foothills Mall in connection with the
development of the premises demised under such Expansion Lease by (B) the IPO
Price; provided that (I) that such Expansion Lease has been determined by the
Board of Directors of FMP (including a majority of the Independent Directors) to
be on commercially reasonable terms; (II) such Expansion Lease is executed on or
prior to December 31, 2009; and (III) the Lease-Up Condition with respect to
such Expansion Lease has been satisfied.
(iv) Limit on OP Units Issued in Connection with an Expansion Parcel
Event. Notwithstanding that there may be multiple Expansion Parcel Events, (a)
in no event shall the number of OP Units issued to each Earnout Participant
pursuant to all such Expansion Events exceed the product obtained by multiplying
(x) its Percentage Interest by (y) the quotient obtained by dividing $2,000,000
by the IPO Price; and (b) Foothills Earnout Units shall not be issued to an
Earnout Participant in connection with an Expansion Lease where the Foothills
Earnout Units were previously issued to such Earnout Participant with respect to
the premises demised under such Expansion Lease.
(b) Pad Parcel.
(i) Pad Event. Subject to the terms of this Section 3(b), each Earnout
Participant shall receive an amount of OP Units (rounded to the nearest OP Unit)
upon the earlier of (collectively, a "Pad Event") (I) the execution of the Pad
Lease; and (II) a sale of the Pad Parcel.
(ii) Pad Lease. With respect to the execution of the Pad Lease, the
amount of OP Units issued to each Earnout Participant shall equal the product
obtained by multiplying (x) its Percentage Interest by (y) the quotient obtained
by dividing the Capitalized Base Rent under the Pad Lease by the IPO Price;
provided that (I) that the Pad Lease has been determined by the Board of
Directors of FMP (including a majority of the Independent Directors) to be on
commercially reasonable terms; (II) the Pad Lease is executed on or prior to
December 31, 2009; (III) the Lease-Up Condition with respect to the Pad Lease
has been satisfied; and (IV) if the Pad Lease includes an option to purchase the
Pad, the amount of OP Units to be issued hereunder shall be the lesser of the
amount payable under this subsection (ii) and the amount of OP Units that would
be issued under subsection (iii) below if it is assumed that such option to
purchase were exercised concurrently with execution of the Pad Lease.
(iii) Pad Sale. In the event of a sale of the Pad, the amount of OP
Units issued to each Earnout Participant shall equal the product obtained by
multiplying (x) its Percentage Interest by (y) the quotient obtained by dividing
(A) the net purchase price for the sale of the Pad together with the assumption
of any indebtedness by the purchaser by (B) the IPO Price; provided that (I)
such sale has been determined by the Board of Directors of FMP (including a
majority of the Independent Directors) to be on commercially reasonable terms;
and (II) such sale is consummated on or prior to December 31, 2009.
(iv) Limit on OP Units Issued in Connection with a Pad Event.
Notwithstanding anything to the contrary contained in Section 3(b), in no event
shall the number of OP Units issued to each Earnout Participant pursuant to a
Pad Event exceed the product obtained by multiplying (x) its Percentage Interest
by (y) the quotient obtained by dividing (A) $750,000 by (B) the IPO Price.
(c) Notice and Issuance of OP Units. Within five (5) Business Days
following the occurrence of an Expansion Parcel Event or a Pad Event, FMP or the
Partnership shall send to each Earnout Participant a notice setting forth the
applicable event and the number of OP units to be issued to such Earnout
Participant. In such event, the Partnership shall cause such OP Units to be
issued and the agreement of limited partnership for the Partnership shall be
amended to reflect such issuance within thirty (30) days thereafter.
4. Merger and Other Events. The rights of an Earnout Participant to
receive Foothills Earnout Units and Harrisburg Earnout Units shall, at such
Earnout Participant's option, be valued and converted into the right to receive
OP Units equal to such value upon the occurrence of a merger, consolidation,
sale of all or substantially all of the assets of FMP or the Partnership or
other change of control transaction, in which the OP Units of the Partnership
are converted into the right to receive cash or other consideration.
5. Non-Transferability of Earnout Rights. Other than in the case of the
death or disability of an Earnout Participant, such Earnout Participant shall
not transfer its right to receive Foothills Earnout Units and Harrisburg Earnout
Units.
Annex A to Schedule 2
Expansion Parcels
Annex B to Schedule 2
Pad Parcel
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 Revenue be issued to me); (2) I am not subject to backup withholding because: (a) I am exempt from
Service backup withholding, or (b) I have not been notified by the Internal Revenue Service ("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) above if Part 3 --
Request for you have been notified by the IRS that you are subject to backup Awaiting TIN
Taxpayer withholding because you have failed to report all interest and |_|
Identification dividends on your tax return. However, if after being notified by
Number (TIN) 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.
--------------------------------------------------------------------------------
--------------------
Xxxxx Xxxxx
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 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. Such Partner, 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. Such Partner, 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. Such Partner's Social Security Number (for individuals) or Employer
Identification Number (for non-individuals) is: _____________; and
4. Such Partner's address is: Xxxxx Xxxxx, 00000 Xxxxx 00xx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000.
In addition, such Partner agrees to inform 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 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.
--------------------
Xxxxx Xxxxx
Date: August 13, 2004
--------------------------------------------------------------------------------
EXHIBIT A (CONTINUED)
ACCREDITED INVESTOR QUESTIONNAIRE
The undersigned 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 Contributed 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 Contributed 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 Recapitalization Agreement dated as of August 13, 2004, among
Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx Equities Operating Partnership, LP, and
Xxxxxxx Mall Properties, Inc.
--------------------
Xxxxx Xxxxx
Date: August 13, 2004
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 Revenue be issued to me); (2) I am not subject to backup withholding because: (a) I am exempt from
Service backup withholding, or (b) I have not been notified by the Internal Revenue Service ("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) above if Part 3 --
Request for you have been notified by the IRS that you are subject to backup Awaiting TIN
Taxpayer withholding because you have failed to report all interest and |_|
Identification dividends on your tax return. However, if after being notified by
Number (TIN) 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.
--------------------------------------------------------------------------------
--------------------
Xxxxx Xxxxxx
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 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. Such Partner, 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. Such Partner, 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. Such Partner's Social Security Number (for individuals) or Employer
Identification Number (for non-individuals) is: _____________; and
4. Such Partner's address is: Xxxxx Xxxxxx, 0000 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000.
In addition, such Partner agrees to inform 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 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.
--------------------
Xxxxx Xxxxxx
Date: August 13, 2004
--------------------------------------------------------------------------------
EXHIBIT A (CONTINUED)
ACCREDITED INVESTOR QUESTIONNAIRE
The undersigned 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 Contributed 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 Contributed 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 Recapitalization Agreement dated as of August 13, 2004, among
Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx Equities Operating Partnership, LP, and
Xxxxxxx Mall Properties, Inc.
--------------------
Xxxxx Xxxxxx
Date: August 13, 2004
