EXHIBIT 10.18
EXECUTION
XXXXXX REDEMPTION
XXXXXX REDEMPTION AGREEMENT
This XXXXXX REDEMPTION AGREEMENT made as of August 13, 2004 (this
"Agreement"), by and among:
(a) XXXXXXX XXXXXX, an individual ("Redeeming 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").
Capitalized terms not defined herein shall have the meanings ascribed to such
terms in that certain Amended and Restated Operating Agreement of Xxxxxxx
Equities of Arizona, LLC dated as of August 13, 2004 (the "FEA Operating
Agreement"), among Xxxxxxx Partners, LLC, an Arizona limited liability company
("FP"), the Partnership, Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx and Xxxxxx Xxxxxxx,
each an individual.
RECITALS:
A. Redeeming Member is a member of FEA, a party to the FEA Operating Agreement
and currently owns membership interests in FEA (such membership interests
and all right, title and interest of Redeeming Member in and to FEA
collectively referred to as the "Membership Interests").
B. Redeeming Member desires to redeem the Membership Interests to FEA in
exchange for an assignment by FEA to Redeeming Member of the Xxxxxx Units
(hereinafter defined) and FEA desires to assign to Redeeming Member the
Xxxxxx Units and accept the redemption of the Membership Interests on the
terms set forth herein.
C. The Xxxxxx Units were issued to FEA pursuant to that certain Subscription
Agreement dated as of August 13, 2004, by and among FEA, the Partnership
and FMP.
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. Redemption and Xxxxxx Units.
1.1 Redemption by Redeeming Member. On the terms hereof and subject to the
conditions contained herein, Redeeming Member hereby agrees to assign
the Membership Interests to FEA in exchange for an assignment by FEA to
Redeeming Member of the Xxxxxx Units and FEA desires to accept the
redemption of the Membership Interests and assign to Redeeming Member
the Xxxxxx Units (the redemption of the Membership Interests and
assignment of the Xxxxxx Units, collectively referred to as the
"Redemption").
1.2 Closing Date. The Redemption shall take place on the date designated by
FEA by notice to the Redeeming 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, Redeeming Member accepts the
assignment of the Xxxxxx 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 Xxxxxx 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 Xxxxxx Units to
Redeeming 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
Xxxxxx Units to Redeeming 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 Xxxxxx Units and confirms that
Redeeming 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) Redeeming Member as the owner of the
Xxxxxx Units and to eliminate FEA from such records
as to the Xxxxxx Units; and (y) that any and all
notices relating to the Xxxxxx Units shall be given
to Redeeming Member in accordance with the LP
Agreement as follows:
Xxxxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
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) Redeeming Member, Xxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxxxx Xxxxxxx and FP (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) "Xxxxxx Units" means an amount of OP Units equal to 11.24174%
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, Redeeming 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 Redeeming
Member shall execute a Tax Protection Agreement; and (ii) FMP
and Redeeming Member shall execute a Registration Rights
Agreement, in each case, in favor of Redeeming Member.
2. Representations, Warranties and Covenants of Redeeming Member.
Redeeming 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. Redeeming
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 Redeeming 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
FEA 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 Xxxxxx Units.
(b) The number and value of the Available Equity Securities and
Xxxxxx 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.
2.3 Authority; Authorization; Execution and Delivery.
(a) Redeeming Member has full power and authority to enter into
the Subscription Documents and to consummate the transactions
contemplated by this Agreement.
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(b) The execution and delivery of the Subscription Documents by
Redeeming Member and the consummation by Redeeming Member of
the transactions contemplated by the Subscription Documents
have been duly authorized by all necessary action on the part
of Redeeming 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 Redeeming Member is a
party or by which Redeeming Member is bound or with any
judgment, decree, statute, order, rule or regulation
applicable to Redeeming Member or Redeeming Member's assets,
and, if Redeeming Member is not an individual, will not
violate any provisions of the organizational or other
formation or governing documents of Redeeming Member.
(c) The Subscription Documents have been duly executed and
delivered by Redeeming Member and constitute valid and legally
binding obligations of Redeeming Member, enforceable against
Redeeming 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 Redeeming Member is an individual, has legal
competence and capacity to execute the same, or, if Redeeming
Member is not an individual, the signatory has been duly
authorized to execute the same on behalf of Redeeming Member.
2.4 Purchase for Investment.
(a) Redeeming Member is acquiring the Xxxxxx Units for Redeeming
Member's own account (or if Redeeming 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 Xxxxxx Units (or Common Shares issued by FMP to
Redeeming Member in connection with a Redemption (as defined
in the LP Agreement) (such Common Shares, "Redemption
Shares")).
(b) Redeeming Member hereby agrees that Redeeming Member shall
not, directly or indirectly, transfer all or any part of such
Xxxxxx 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 Xxxxxx 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) Redeeming Member understands that (i) Redeeming Member must
bear the economic risk of an investment in the Xxxxxx Units
and Redemption Shares for an indefinite period of time
because, among other reasons, the transfer of the Xxxxxx Units
and Redemption Shares have not been registered under the
Securities Act and, therefore, the Redemption Shares and
Xxxxxx 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
Xxxxxx 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 Xxxxxx 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 Xxxxxx 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 Xxxxxx
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 Xxxxxx 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) Redeeming Member has carefully reviewed this Agreement, the
forms of the LP Agreement, the Charter and by-laws of FMP.
Redeeming Member has been provided an opportunity to ask
questions of, and Redeeming Member has received answers
thereto satisfactory to Redeeming Member from, FEA, the
General Partner, the Partnership and FMP or their respective
representatives regarding the terms and conditions of the
transfer of the Xxxxxx Units, and Redeeming Member has
obtained all additional information requested by Redeeming
Member of FEA, the General Partner, the Partnership and FMP
and their respective representatives to verify the accuracy of
all information furnished to Redeeming Member regarding the
transfer of the Xxxxxx Units.
(b) Redeeming Member is not relying on FEA, the General Partner,
the Partnership or FMP 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 Xxxxxx
Units or Redemption Shares.
(c) Redeeming Member has been advised to consult with his or its
tax, legal and other advisors regarding the transfer of the
Xxxxxx Units and its effects, the tax consequences of making
and not making a subscription hereunder, and has obtained, in
Redeeming Member's judgment, sufficient information to
evaluate the merits and risks of such subscription and
investment.
(d) Redeeming 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 Xxxxxx Units that is not contained in this Agreement.
2.6 Economic and Liquidity Risk.
(a) Redeeming Member has such knowledge and experience in
financial and business matters such that Redeeming Member is
capable of evaluating the merits and risks making a
subscription for the Xxxxxx Units, and that Redeeming Member
has evaluated the risks of investing in the Xxxxxx Units and
has determined that they are a suitable investment for
Redeeming Member.
(b) Redeeming Member understands that an investment in the Xxxxxx
Units or Redemption Shares is a speculative investment that
involves very significant risks and tax uncertainties and that
Redeeming Member is prepared to bear the economic, tax and
other risks of an investment in the Xxxxxx Units or Redemption
Shares for an indefinite period of time, and is able to
withstand a total loss of Redeeming Member's investment in the
Xxxxxx Units or Redemption Shares.
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(c) Redeeming Member has adequate net worth and no need for
liquidity in his investment in the Xxxxxx Units or Redemption
Shares.
2.7 Eligibility; Accredited Investor Status. Redeeming Member is an
"accredited investor" as defined in Regulation D under the Securities
Act. Redeeming Member will, upon request, execute and/or deliver any
additional documents deemed by the General Partner, the Partnership or
FMP to be necessary or desirable to confirm Redeeming Members such
status.
2.8 Ownership of the Membership Interests.
(a) Redeeming Member has good and marketable title to the
Membership 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. Redeeming Member shall not sell,
convey, assign or otherwise transfer all or any portion of the
Membership Interests prior to the Closing Date.
(b) Redeeming 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. Redeeming 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 Redeeming Member is a natural person, the principal
residence of Redeeming Member;
(b) if Redeeming 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
Redeeming Member;
(c) if Redeeming Member is an Entity other than a general
partnership, the state of incorporation, organization or
formation of Redeeming Member;
(d) if Redeeming 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 Redeeming Member that is a natural person;
and
(e) if Redeeming 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
Redeeming Member that is an Entity.
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2.10 Status as Foreign Person. Redeeming 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, Redeeming 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. Redeeming 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 Xxxxxx Units.
3. Representations, Warranties and Covenants of FEA. FEA hereby
acknowledges, represents and warrants to, and covenants and agrees
with, Redeeming 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 thereby.
(b) The execution and delivery of this Agreement and the
consummation by FEA of the transactions contemplated hereby
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
respective terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to
creditors' rights and general principles of equity.
3.2 Xxxxxx Units. Immediately prior to the Redemption, FEA will own the
Xxxxxx Units, free and clear of all liens, claims and encumbrances.
3.3 Commercially Reasonable Efforts. Subject to the terms and conditions
herein provided, the 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.
5.2 Mutual Performance. The mutual performance by the relevant parties of
their obligations contained in the Subscription Agreement described in
Schedule 1.
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5.3 Representations, Warranties and Covenants. The representations and
warranties of Redeeming 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. Redeeming 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 Closing Documents. Redeeming 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 Redeeming Member. The obligations of
Redeeming Member to consummate the Redemption and receive the Xxxxxx
Units pursuant 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 Redeeming 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 Redeeming Member pursuant to
the Subscription Documents.
7.2 FEA hereby agrees to indemnify and defend the Redeeming 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. Tax Treatment. It is intended for federal income tax purposes that the
contribution, transfer, conveyance and assignment effectuated pursuant
to this Agreement when taken together with the transactions to be
effectuated pursuant to the agreements listed in Schedule 1, shall be
treated as a merger of FEA with and into the Partnership in
"assets-over" form pursuant to Treasury Regulation Section
1.708-1(c)(3). To the extent Redeeming Member's transfer in accordance
with this Agreement is treated as a "disguised sale" pursuant to
Section 707 of the Code, or the Treasury Regulations thereunder, such
transfer shall be treated as a purchase of the "sold interest" by the
Partnership directly from Redeeming Member in accordance with the
provisions of Treasury Regulation Section 1.708-1(c)(4) and Code
Section 741. Redeeming Member expressly consents to such tax treatment
with respect to its "sold interest." Based on the above, the
Partnership and Redeeming Member agree that the transaction shall be
treated for federal income tax purposes as if Redeeming Member sold the
"sold interest" in FEA to the Partnership, FEA then transferred its
assets and liabilities (except to the extent attributable to the "sold
interests") to the Partnership in exchange for the Xxxxxx Units, and
then FEA liquidated, distributing the Xxxxxx Units (other than with
respect to their "sold interests") and distributing the balance of its
assets and liabilities to the Partnership in redemption of the "sold
interests" acquired by the Partnership.
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9. Power of Attorney; Amendments to Operating Agreement and 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 FEA Operating
Agreement, the LP Agreement and any other document and agreement
relating to the Xxxxxx Units, on Redeeming Member's behalf and in
Redeeming Member's name, as the Partnership may deem necessary or
desirable.
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 Redeeming 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 Redeeming 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 Redeeming
Member: Xxxxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
If to the General
Partner, Partnership,
FEA or FMP: Insert applicable addressee:
[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
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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 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.
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 Redeeming Member of the Xxxxxx
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.
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.
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11.9 Further Assurances. Redeeming 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
Redeeming Member such additional information as it may deem necessary
to evaluate the eligibility of Redeeming Member to acquire the Xxxxxx
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 Xxxxxx Units or Redemption Shares or to enable the General Partner,
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.
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,
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: REDEEMING MEMBER:
------------------- ----------------
XXXXXXX HOLDINGS BUSINESS TRUST I,
a Massachusetts business trust
-------------------
By: __________________ Xxxxxxx Xxxxxx
Name:
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 Name:
its general partner Title:
By:________________________
Name:
Title:
FEA:
---
XXXXXXX EQUITIES OF ARIZONA, LLC,
an Arizona limited liability company
By: __________________
Name:
Title:
12
EXECUTION
XXXXXX REDEMPTION
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 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.
--------------------------------------------------------------------------------
-------------------
Xxxxxxx 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 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. Redeeming 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. Redeeming 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. Redeeming Member's Social Security Number (for individuals) or
Employer Identification Number (for non-individuals) is: _____________; and
4. Redeeming Member's address is: Xxxxxxx Xxxxxx, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
In addition, Redeeming 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 Redeeming Member that is not an
individual, I further declare that I have authority to sign this document on
behalf of Redeeming Member.
-------------------
Xxxxxxx Xxxxxx
Date: August 13, 2004
--------------------------------------------------------------------------------
EXHIBIT A (CONTINUED)
ACCREDITED INVESTOR QUESTIONNAIRE
Redeeming 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 Xxxxxx 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 Xxxxxx 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 Xxxxxx Redemption Agreement dated as of August 13, 2004,
among Xxxxxxx Equities Operating Partnership, LP, Xxxxxxx Xxxxxx, Xxxxxxx
Equities of Arizona, LLC, Xxxxxxx Holdings Business Trust I and Xxxxxxx Mall
Properties, Inc.
-------------------
Xxxxxxx Xxxxxx
Date: August 13, 2004
