EXHIBIT 10.7
EXECUTION
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT made as of August 13, 2004 (this
"Agreement"), by and among:
(a) XXXXXXX EQUITIES OPERATING PARTNERSHIP, LP, a Delaware limited
partnership (the "Partnership");
(b) XXXXXXX EQUITIES OF ARIZONA, LLC, an Arizona limited liability
company ("FEA"); and
(c) 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 ("FP"), the Partnership, Xxxxxxx
Xxxxxx, Xxxxxxxx Xxxxxxx and Xxxxxx Xxxxxxx, each an individual.
RECITALS:
A. The Partnership is a member of FEA, a party to the FEA Operating Agreement
and currently owns membership interests in FEA.
B. The Partnership desires to issue to FEA an amount of OP Units equal to
66.34644% of the Available Equity Securities (rounded to the nearest whole
OP Unit) (the "Subscribed Units") (subject to reduction pursuant to Section
1.4 below), and FEA desires to accept the same on the terms set forth
herein.
C. As used herein, (a) "OP Units" means common units of limited partner
interest in the Partnership; (b) "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; (c) "Contributors" means (i) FP, Xxxxx Xxxxx, Xxxxx
Xxxxxx, 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 (d) "IPO" means the underwritten initial public
offering of FMP of its Commons Shares pursuant to an effective registration
statement filed with the Securities Exchange Commission.
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. Subscription by FEA.
1.1 Issuance of Subscribed Units. On the terms hereof and subject to
the conditions contained herein, the Partnership hereby agrees to issue to FEA
the Subscribed Units and FEA agrees to accept the same (the "Subscription").
1.2 Closing Date. The Subscription shall take place on the date
designated by the Partnership by notice to FEA (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 Ancillary Documents. On the date hereof, FEA shall deliver to the
Partnership 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").
1.4 Reduction in Subscribed Units. Notwithstanding anything to the
contrary, if the Partnership makes the Alternative Transaction Election under
that certain Irrevocable Contribution Agreement dated as of the date hereof,
among Xxxxxxxx Xxxxxxx, FEA, the Partnership and FMP, the Subscribed Units shall
be equal to an number of OP Units equal to 59.32034% of Available Equity
Securities (rounded to the nearest whole OP Unit).
2. Representations, Warranties and Covenants of FEA. FEA hereby acknowledges,
represents and warrants to, and covenants and agrees with 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. FEA has
reviewed and approved the forms of the First Amended and Restated Agreement of
Limited Partnership of the Partnership (as amended from time to time, the "LP
Agreement"), the Charter and by-laws of FMP (as amended from time to time,
collectively, the "FMP Organizational Documents"), and FEA 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 Subscribed Units.
(a) As of the date of this Agreement, neither the Partnership
nor FMP knows the number or value of the Available Equity Securities and,
accordingly, the number or value of the Subscribed Units.
(b) The number and value of the Available Equity Securities
and Subscribed 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) FEA has full power and authority to enter into the
Subscription Documents and to consummate the transactions contemplated thereby.
(b) The execution and delivery of the Subscription Documents
by FEA and the consummation by FEA of the transactions contemplated thereby have
been duly authorized by all necessary action on the part of FEA and will not
constitute or result in a breach or default under, or conflict with or violate,
any agreement or other undertaking, to which FEA is a party or by which FEA is
bound or with any judgment, decree, statute, order, rule or regulation
applicable to FEA or FEA's assets, and, if FEA is not an individual, will not
violate any provisions of the organizational or other formation or governing
documents of FEA.
(c) The Subscription Documents have been duly executed and
delivered by FEA and constitute valid and legally binding obligations of FEA,
enforceable against FEA 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 FEA
is an individual, has legal competence and capacity to execute the same, or, if
FEA is not an individual, the signatory has been duly authorized to execute the
same on behalf of FEA.
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2.4 Purchase for Investment.
(a) FEA is acquiring the Subscribed Units for FEA's own
account (or if FEA 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 Subscribed Units (or Common Shares issued by FMP to FEA in
connection with a Redemption (as defined in the LP Agreement) (such Common
Shares, "Redemption Shares")), except in connection with a transfer to FP.
(b) Except in connection with a transfer to FP, FEA hereby
agrees that FEA shall not, directly or indirectly, transfer all or any part of
the Subscribed 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
Subscribed 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) FEA understands that (i) FEA must bear the economic risk
of an investment in the Subscribed Units and Redemption Shares for an indefinite
period of time because, among other reasons, the offering and sale of the
Subscribed Units and Redemption Shares have not been registered under the
Securities Act and, therefore, the Subscribed Units and Redemption Shares 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 Subscribed 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 Subscribed 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 Subscribed 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) except in connection
with a transfer to FP, sale, transfer or assignment of the Subscribed 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
Subscribed 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.
2.5 Information.
(a) FEA has carefully reviewed this Agreement, the forms of
the LP Agreement, the Charter and by-laws of FMP. FEA has been provided an
opportunity to ask questions of, and FEA has received answers thereto
satisfactory to FEA from, the Partnership and FMP or their respective
representatives regarding the terms and conditions of the offering of the
Subscribed Units, and FEA has obtained all additional information requested by
FEA of the Partnership and FMP and their representatives to verify the accuracy
of all information furnished to FEA regarding the transfer of the Subscribed
Units.
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(b) FEA 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 the Subscribed Units or Redemption Shares.
(c) FEA has been advised to consult with his or its tax, legal
and other advisors regarding the subscription of the Subscribed Units and its
effects, the tax consequences of making and not making a transfer hereunder, and
has obtained, in FEA's judgment, sufficient information to evaluate the merits
and risks of such subscription and investment.
(d) FEA 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 Subscribed Units that is not contained in
this Agreement.
2.6 Economic and Liquidity Risk.
(a) FEA has such knowledge and experience in financial and
business matters such that FEA is capable of evaluating the merits and risks of
making a subscription for the Subscribed Units, and that FEA has evaluated the
risks of investing in the Subscribed Units and has determined that they are a
suitable investment for FEA.
(b) FEA understands that an investment in the Subscribed Units
or Redemption Shares is a speculative investment that involves very significant
risks and tax uncertainties and that FEA is prepared to bear all of the
economic, tax and other risks of an investment in the Subscribed Units or
Redemption Shares for an indefinite period of time, and is able to withstand a
total loss of FEA's investment in the Subscribed Units or Redemption Shares.
(c) FEA has adequate net worth and no need for liquidity in
its investment in the Subscribed Units or Redemption Shares.
2.7 Eligibility; Accredited Investor Status. FEA is an "accredited
investor" as defined in Regulation D under the Securities Act. FEA will, upon
request, execute, deliver and/or provide any additional documents deemed by the
Partnership or FMP to be necessary or desirable to confirm FEA's such status.
2.8 Residence; Etc. The signature pages attached to this Agreement
correctly set forth
(a) if FEA is a natural person, the principal residence of
FEA;
(b) if FEA 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
FEA;
(c) if FEA is an Entity other than a general partnership, the
state of incorporation, organization or formation of FEA;
(d) if FEA 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 FEA that is a
natural person; and
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(e) if FEA 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 FEA that is an Entity.
2.9 Status as Foreign Person. FEA 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.
2.10 Continuing Efforts. Subject to the terms and conditions herein
provided, FEA 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.
2.11 No Brokers or Finders. FEA 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
Subscribed Units.
3. Representations, Warranties and Covenants of the Partnership. The Partnership
hereby acknowledges, represents and warrants to, and covenants and agrees with,
FEA 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) The Partnership has full power and authority to enter into
this Agreement and to consummate the transactions contemplated herein.
(b) The execution and delivery of this Agreement and the
consummation by the Partnership of the transactions contemplated herein have
been duly authorized by all necessary action on the part of the Partnership.
(c) This Agreement has been duly executed and delivered by the
Partnership and constitutes the valid and legally binding obligations of the
Partnership, enforceable against the Partnership in accordance with and subject
to its terms, subject to applicable bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights and general principles of equity.
3.2 Subscribed Units. Contemporaneously with the Subscription, the
Subscribed Units will, on the Closing Date, be duly authorized OP Units, issued
in the name of FEA, free and clear of all liens, claims and encumbrances other
than those created by FEA.
3.3 Commercially Reasonable Efforts. Subject to the terms and
conditions herein provided, the Partnership 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.
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5. Conditions to Consummation by the Partnership. The obligations of the
Partnership to accept a subscription from, and to issue the Subscribed Units to,
FEA 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 Mutual Performance. The mutual performance by the relevant parties
of their obligations contained in the Subscription Agreement described in
Schedule 1.
5.2 Closing of the IPO. The closing of the IPO shall have occurred.
5.3 Representations, Warranties and Covenants. The representations and
warranties of FEA 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. FEA 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. FEA 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. Conditions to Consummation by FEA. The obligations of FEA to accept the
Subscribed Units from the Partnership pursuant to this Agreement are subject to
the fulfillment of the conditions set forth in this Article 6, any one or more
of which may be waived by FEA:
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 the Partnership 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 Partnership 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.
6.3 Closing Documents. The Partnership 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 this Agreement.
7. Indemnity.
7.1 FEA 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 FEA pursuant to the Subscription Documents.
7.2 The Partnership hereby agrees to indemnify and defend FEA against
any and all damage, loss, liability and expense incurred or suffered by any of
them out of or based upon the inaccuracy of any representation or warranty or
breach of any agreement made or to be performed by the Partnership pursuant to
this Agreement.
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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 FP's transfer in accordance with the Member
Redemption Agreement, referred to in Schedule 1, 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 FP in accordance with the provisions of
Treasury Regulation Section 1.708-1(c)(4) and Code Section 741. FP expressly
consents to such tax treatment with respect to its "sold interest". Based on the
above, the Partnership and FP agree that the transaction shall be treated for
federal income tax purposes as if FP 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
Subscribed Units in the Partnership, and then FEA liquidated, distributing the
Subscribed Units to FP (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.
9. Power of Attorney; Amendments to the LP Agreement. By executing this
Agreement, FEA hereby irrevocably constitutes and appoints Xxxxxxx Holdings
Business Trust I, a Massachusetts business trust (or a substitute appointed by
the Partnership) as his or its attorney-in-fact and agent with full power of
substitution to take any and all actions and execute the LP Agreement and any
and all such amendments to the LP Agreement and any other document and agreement
relating to the Subscribed Units, on FEA's behalf and in FEA'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 FEA hereby agrees to future modifications
of this Agreement as may be reasonably proposed by the Partnership, provided
that such modifications do not have any negative impact on the tax position of
FEA.
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 FEA: 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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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
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 FEA 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 transfer of the Subscribed Units from the Partnership to FEA and the
subscription by FEA of the Subscribed 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 Subscription or the rights or obligations of the parties under
this Agreement shall be resolved by the Board of Directors of FMP, which
resolution shall be binding on the parties.
11.6 Assignability. This Agreement is not transferable or assignable by
any party hereto. This Agreement shall be for the benefit of the parties hereto.
11.7 Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
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11.8 Counterparts. This Agreement may be executed by facsimile
signature and through the use of separate signature pages or in counterparts,
and each of such counterparts shall, for all purposes, constitute one agreement
binding on the parties hereto, notwithstanding that the parties hereto are not
signatories to the same counterpart.
11.9 Further Assurances. FEA 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 FEA such additional information as it may
deem necessary to evaluate the eligibility of FEA to acquire the Subscribed
Units, and may request from time to time such information as it may deem
necessary to determine the eligibility of FEA to hold the Subscribed Units or
Redemption Shares or to enable the Partnership or FMP to determine FEA's
compliance with applicable regulatory requirements or tax status, and FEA shall
provide such information as may reasonably be requested.
11.10 Severability. If any term or provision of this Agreement shall to
any extent be invalid or unenforceable, the remainder of this Agreement shall
not be affected thereby, and each term and provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law. Upon the
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties shall negotiate in good faith to modify this
Agreement so as to effect their original intent as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the extent possible.
11.11 Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement.
11.12 Expenses. Each of the parties hereto agrees to pay the expenses
incurred by it in connection with the negotiation, preparation, review,
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, including the fees and expenses of counsel to
such party.
[The remainder of this page has been intentionally left blank.]
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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.
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:
FEA:
XXXXXXX EQUITIES OF ARIZONA, LLC,
an Arizona limited liability company
By: ________________________
Name:
Title: Manager
FMP:
XXXXXXX MALL PROPERTIES, INC.,
a Maryland corporation
By: ________________________
Name:
Title:
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EXECUTION
Schedule 1
1. Xxxxxxx Partners, LLC Redemption Agreement dated as of August 13, 2004,
among Xxxxxxx Partners, LLC, an Arizona limited liability company ("FP"),
Xxxxxxx Equities of Arizona, LLC, an Arizona limited liability company
("FEA"), Xxxxxxx Equities Operating Partnership, LP, a Delaware limited
partnership (the "Partnership"), Xxxxxxx Holdings Business Trust I, a
Massachusetts business trust (the "General Partner"), and Xxxxxxx Mall
Properties, Inc., a Maryland corporation ("FMP").
2. Recapitalization Agreement dated as of August 13, 2004, among Xxxxx Xxxxx,
Xxxxx Xxxxxx, the Partnership and FMP.
3. Subscription Agreement dated as of August 13, 2004, among the Partnership,
FMP and FEA.
4. Xxxxxx Redemption Agreement dated as of August 13, 2004, among Xxxxxxx
Xxxxxx, FEA, the Partnership, the General Partner and FMP.
5. Irrevocable Contribution Agreement dated as of August 13, 2004, among
Xxxxxxxx Xxxxxxx, the Partnership, the General Partner, FMP and FEA.
6. FEGP Merger Agreement dated as of August 13, 2004, among Xxxxxxx Equities
General Partner Inc., a Pennsylvania corporation, Xxxxxxx Equities General
Partner Merger Inc., a Pennsylvania corporation, FMP and FP.
7. FHGP Merger Agreement dated as of August 13, 2004, among Xxxxxxx Harrisburg
General Partner Inc., a Pennsylvania corporation, Xxxxxxx Harrisburg
General Partner Merger Inc., a Pennsylvania corporation, FMP and FP.
EXHIBIT A
FORM W-9
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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
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Department of Part 2 -- Certification -- Under penalties of perjury, I certify that: (1) The number shown
The Treasury on this form is my correct taxpayer identification number (or I am waiting for a number to Internal
Internal Revenue Revenue be issued to me); (2) I am not subject to backup withholding because: (a) I am exempt from
Service Service backup withholding, or (b) I have not been notified by the ("IRS") that I am subject to
backup withholding as a result of failure to report all interest or dividends, or the IRS has
notified me that I am no longer subject to backup withholding; and (3) I am a U.S. person (including
a U.S. resident alien).
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Payer's Certification Instructions -- You must cross out item (2) Part 3 --
Request for above if you have been notified by the IRS that you are Awaiting TIN
Taxpayer subject to backup withholding because you have failed to |_|
Identification report all interest and dividends on your tax return.
Number (TIN) However, if after being notified by the IRS that you were
subject to backup withholding you received another
notification from the IRS that you are no longer subject
to backup withholding, do not cross out item (2).
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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.
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XXXXXXX EQUITIES OF ARIZONA, LLC,
an Arizona limited liability company
By: ____________________
Name: Xxxxxxxx Xxxxxxx
Title: Manager
Date: August 13, 2004
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EXHIBIT A (CONTINUED)
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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. FEA, 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. FEA, 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. FEA's Social Security Number (for individuals) or Employer
Identification Number (for non-individuals) is: _____________; and
4. FEA's address is: Xxxxxxx Equities of Arizona, LLC, 0000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxx Xxxxxxx.
In addition, FEA 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 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 FEA that is not an individual, I
further declare that I have authority to sign this document on behalf of FEA.
XXXXXXX EQUITIES OF ARIZONA, LLC,
an Arizona limited liability company
By: ____________________
Name: Xxxxxxxx Xxxxxxx
Title: Manager
Date: August 13, 2004
--------------------------------------------------------------------------------
EXHIBIT A (CONTINUED)
ACCREDITED INVESTOR QUESTIONNAIRE
FEA 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 Subscribed 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 Subscribed 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 Subscription Agreement dated as of August 13, 2004, among
Xxxxxxx Equities Operating Partnership, LP, Xxxxxxx Equities of Arizona, LLC and
Xxxxxxx Mall Properties, Inc.
XXXXXXX EQUITIES OF ARIZONA, LLC,
an Arizona limited liability company
By: ____________________
Name: Xxxxxxxx Xxxxxxx
Title: Manager
Date: August 13, 2004
