Exhibit 10.21
XXXXXXX MALL PROPERTIES, INC.
WAIVER AND CONTRIBUTION AGREEMENT
This is an agreement dated as of November 15, 2004 between Xxxxxxx
Partners, LLC (the "Contributor"), Xxxxxxx Mall Properties, Inc., a Maryland
corporation (the "Company"), and Xxxxxxx Equities Operating Partnership, LP, a
Delaware limited partnership (the "Partnership").
WHEREAS, Contributor has entered into agreements with the Company and
Partnership, including the agreements described on Schedule A hereto (together,
the "Contribution Agreements"), pursuant to which the Contributor will receive
shares of common stock in the Company and/or units of limited partnership
interest in the Partnership (together, the "Securities");
WHEREAS, the offer and sale of the Securities to the Contributor (the
"Private Offering") has been structured as a private placement exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), by virtue of Section 4(2) and/or Regulation D promulgated
thereunder;
WHEREAS, the Company is conducting a public offering of its common stock
(the "Public Offering") pursuant to a Registration Statement on Form S-11
(Registration No. 333-118246);
WHEREAS, a question has arisen as to whether the private offering
exemption is available for the Private Offering;
WHEREAS, in the event that the private offering exemption is not
available, Contributor may have rights under federal or state securities laws,
common law or otherwise to bring an action against the Company and/or the
Partnership seeking rescission of the Private Offering and/or damages against
the Company or the Partnership; and
WHEREAS, the Company is unable to proceed with the Public Offering unless
Contributor enters into this Agreement pursuant to which Contributor will
provide the waivers and releases and the other agreements set forth below;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, Contributor, the Company and the Partnership do hereby
covenant and agree as follows:
1. Contributor Acknowledgments. Contributor hereby expressly acknowledges
to the Company and the Partnership that Contributor is aware that Contributor
may have rights under federal or state securities laws, common law or otherwise
to rescission of the Private Offering and/or to recover damages against the
Company or the Partnership arising out of the Private Offering or the
availability or validity (or lack thereof) of the private offering exemption.
Contributor further acknowledges that (i) Contributor will be receiving material
benefits from the completion of the Private Offering, which benefits will only
be available to Contributor if the Company is able to complete the Public
Offering, and (ii) the Company will not be able to complete the Public Offering
unless Contributor executes this Agreement.
2. Waiver and Release. Contributor hereby knowingly and voluntarily agrees
to irrevocably waive any rights that Contributor may have under federal or state
securities laws, common law or otherwise for rescission of the Private Offering
and/or to recover damages against the Company, the Partnership, their respective
partners, stockholders, directors and officers, and any person who controls the
Company or the Partnership within the meaning of Section 15 of the Securities
Act, and the successors and assigns of all of the foregoing persons (such
persons, together with the Company and the Partnership, being referred to as the
"Company Affiliates") arising out of the Private Offering or the availability or
validity (or lack thereof) of the private offering exemption. Contributor agrees
that such waiver shall be binding on Contributor and his heirs, executors,
administrators, successors and assigns. In addition, Contributor hereby
knowingly and voluntarily releases the Company Affiliates from any and all
actions, causes of action, claims, grievances, complaints or demands of any kind
whatsoever, whether known or unknown which Contributor or his heirs, executors,
administrators, successors, or assigns ever had or may have against any of the
Company Affiliates arising out of the Private Offering or the availability or
validity (or lack thereof) of the private offering exemption.
3. Contribution. Contributor further agrees that if the waiver and release
in paragraph 2 is found by a court of competent jurisdiction to be unavailable
to or unenforceable by the Company or the Partnership and Contributor shall,
notwithstanding the agreements made by Contributor in paragraph 2, commence an
action against any Company Affiliate seeking rescission of the Private Offering
or damages against any Company Affiliate arising out of the Private Offering or
the availability or validity (or lack thereof) of the private offering exemption
and Contributor shall prevail in such action, Contributor agrees to contribute
to the Partnership any amounts recovered by Contributor in respect of any such
action. Contributor agrees that any amounts contributed shall not be deemed a
capital contribution made by Contributor nor shall such amounts increase the
partnership interest held by Contributor in the Partnership.
4. Indemnification. Contributor further agrees to indemnify, defend and
hold harmless the Company Affiliates from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which any
such Company Affiliate may incur as a result of any action brought by
Contributor arising out of or relating to the Private Offering and/or the
availability or validity (or lack thereof) of the private offering exemption.
5. Consultation with Counsel. Contributor acknowledges that he was advised
in writing to consult with legal counsel before signing this Agreement.
6. Miscellaneous. The parties further agree as follows:
(a) This Agreement may be amended only by a document signed by each
of the parties hereto.
(b) This Agreement will be governed by, and construed under, the
laws of the State of New York, without giving effect to any conflicts of laws
principals which would apply the law of another jurisdiction.
(c) This Agreement may be executed in two or more counterparts, or
on counterpart signature pages. Each of those counterparts will be deemed an
original, but all of them together will constitute one and the same agreement.
(d) The parties agree that each Company Affiliate (other than the
Company and the Partnership who are parties hereto) shall be third party
beneficiaries of this Agreement.
IN WITNESS WHEREOF, this Waiver and Contribution Agreement has been
executed by the parties hereto as of the date first written above.
Xxxxxxx Partners, LLC
/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Member
Xxxxxxx Mall Properties, Inc.
By: /s/ Xxxxx Xxxxxxx
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Name:
Title:
Xxxxxxx Equities Operating Partnership, LP
By: Xxxxxxx Holdings Business Trust I, its general partner
By: /s/ Xxxxx Xxxxxxx
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Name:
Title:
