Exhibit 10.19
EXECUTION
XXXXXXX PARTNERS, LLC REDEMPTION AGREEMENT
This XXXXXXX PARTNERS, LLC REDEMPTION AGREEMENT made as of August 13,
2004 (this "Agreement"), by and among:
(a) XXXXXXX PARTNERS, LLC, an Arizona limited liability company
("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 Redeeming Member, 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 a membership interest in FEA, (such membership interest,
Percentage Interest and all right, title and interest of Redeeming Member
in and to FEA collectively referred to as the "Membership Interest").
B. Redeeming Member desires to redeem the Membership Interest to FEA in
exchange for an assignment by FEA to Redeeming Member of the FP Units
(hereinafter defined) and FEA desires to assign to Redeeming Member the FP
Units and accept the redemption of the Membership Interest on the terms set
forth herein.
C. The FP 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 FP Units.
1.1 Redemption by Redeeming Member. On the terms hereof and subject to the
conditions contained herein, FEA and Redeeming Member hereby agree and
consent to the redemption by FEA of the Membership Interest in exchange
for the FP Units and the Earnout Right (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 FP 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 FP 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 FP 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 FP 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 FP 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 FP Units and to
eliminate FEA from such records as to the FP Units; and (y)
that any and all notices relating to the FP Units shall be
given to Redeeming Member in accordance with the LP Agreement
as follows:
Xxxxxxx Partners, LLC
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: 000-000-0000
1.4 Certain Definitions. As used herein:
(a) "Available Equity Securities" means the aggregate number of OP
Units and shares of common stock ("Common Shares"), par value $0.01
per share of FMP available for allocation to the Contributors on
the closing of the IPO pursuant to the agreements listed on
Schedule 1 hereto;
(b) "Contributors" means (i) Redeeming Member, 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;
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(c) "Earnout Right" means the right granted to the Redeeming Member to
receive additional OP Units (the "Earnout Units") from the
Partnership upon the terms and conditions set forth in Schedule 2.
(d) "Earnout Units" has the meaning set forth in the definition of
"Earnout Right."
(e) "FP Units" means an amount of OP Units equal to 48.07860% of the
Available Equity Securities (rounded to the nearest whole OP Unit);
(f) "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;
(g) "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
(h) "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, substantially in the form of the draft dated August 13,
2004, with such modifications as FMP and/or the Partnership deem
necessary in their respective sole discretion.
2. Representations, Warranties and Covenants of 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 FP
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 FP
Units.
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(b) The number and value of the Available Equity Securities and FP
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.
(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 FP Units and, if issued, Earnout
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 FP Units or Earnout 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 FP 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 FP 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.
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(c) Redeeming Member understands that (i) Redeeming Member must bear
the economic risk of an investment in the FP Units, Redemption
Shares and Earnout Units for an indefinite period of time because,
among other reasons, the transfer of the FP Units and Redemption
Shares and the issuance of Earnout Units have not been registered
under the Securities Act and, therefore, the Redemption Shares,
Earnout Units and FP 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 FP Units and Redemption Shares and the issuance of 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
FP Units, Earnout 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 FP Units,
Earnout 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 FP 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 FP Units, Earnout
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) 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 FP Units or the issuance of
Earnout 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 FP Units or the
issuance of Earnout 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 FP Units, Earnout 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 FP Units and
the issuance of Earnout 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 FP Units and
the issuance of Earnout Units that is not contained in this
Agreement.
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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 of making a subscription for the FP
Units and Earnout Units, and that Redeeming Member has evaluated
the risks of investing in the FP Units and Earnout Units and has
determined that they are a suitable investment for Redeeming
Member.
(b) Redeeming Member understands that an investment in the FP Units,
Earnout Units or Redemption Shares is a speculative investment that
involves very significant risks and tax uncertainties and that
Redeeming Member is prepared to bear all of the economic, tax and
other risks of an investment in the FP Units, Earnout 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 FP
Units, Earnout Units or Redemption Shares.
(c) Redeeming Member has adequate net worth and no need for liquidity
in his investment in the FP Units, Earnout 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, deliver and/or
provide any additional documents deemed by the General Partner, the
Partnership or FMP to be necessary or desirable to confirm Redeeming
Member's such status.
2.8 Ownership of the Membership Interest.
(a) Redeeming Member has good and marketable title to the Membership
Interest, 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 Interest
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;
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(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.
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 FP 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 herein.
(b) The execution and delivery of this Agreement and the consummation
by FEA of the transactions contemplated herein have been duly
authorized by all necessary action on the part of FEA.
(c) This Agreement has been duly executed and delivered by FEA and
constitutes the valid and legally binding obligations of FEA,
enforceable against FEA in accordance with and subject to its
terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights and general
principles of equity.
3.2 FP Units. Immediately prior to the Redemption, FEA will own the FP
Units, free and clear of all liens, claims and encumbrances.
3.3 Commercially Reasonable Efforts. Subject to the terms and conditions
herein provided, FEA covenants and agrees to use commercially
reasonable efforts to take, or cause to be taken, all actions and do,
or cause to be done, all things necessary, proper and/or appropriate to
consummate and make effective the transactions contemplated by this
Agreement.
4. Survival. The representations, warranties, covenants and agreements
contained in this Agreement and the Accredited Investor Questionnaire
shall survive the consummation of the transactions contemplated herein.
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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.
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 FP 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.
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8. Tax Treatment.
8.1 The Redemption. 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 FP Units, and then
FEA liquidated, distributing the FP 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.
8.2 The Earnout Units. The Partnership agrees to treat the issuance of the
Earnout Units as an adjustment to the initial consideration issued and
distributed to the Redeeming Member pursuant to Section 8.1 above.
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 FP 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:
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If to Redeeming Member: Xxxxxxx Partners, LLC
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: 000-000-0000
If to the General Partner, Insert applicable addressee:
Partnership, FEA or FMP: [Xxxxxxx Holdings Business Trust I]
[Xxxxxxx Equities Operating Partnership, LP]
[Xxxxxxx Mall Properties, Inc.]
[Xxxxxxx Equities of Arizona, LLC]
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: 000-000-0000
in each case, with a copy to:
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxx, Esq.
Facsimile: 000-000-0000
All such notices, requests and other communications will (a) if delivered
personally to the applicable addressees as provided in this Section 11.2, be
deemed given upon delivery; (b) if delivered by facsimile transmission to the
applicable facsimile numbers as provided in this Section 11.2, be deemed given
upon receipt; and (c) if delivered by mail to the applicable addressees as
provided in this Section 11.2, be deemed given upon receipt or refusal (in each
case regardless of whether such notice, request or other communication is
received by any other Entity or person to whom a copy of such notice is to be
delivered pursuant to this Section 11.2). Any party from time to time may change
its address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other parties hereto
in accordance with this Section 11.2.
11.3 Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties and their
heirs, executors, administrators, successors, legal representatives and
permitted assigns. If 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 FP
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.
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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.
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 FP
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 FP 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, review,
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, including the fees and expenses of
counsel to such party.
[The remainder of this page has been intentionally left blank.]
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
THE GENERAL PARTNER: REDEEMING MEMBER:
------------------- ----------------
XXXXXXX HOLDINGS BUSINESS TRUST I, XXXXXXX PARTNERS, LLC,
a Massachusetts business trust an Arizona limited liability company
By: __________________ By: ____________________
Name: Name: Xxxxxxxx Xxxxxxx
Title: Title: Manager
THE PARTNERSHIP: FMP:
--------------- ---
XXXXXXX EQUITIES OPERATING PARTNERSHIP, LP, XXXXXXX MALL PROPERTIES, INC.,
a Delaware limited partnership a Maryland corporation
By: Xxxxxxx Holdings Business Trust I, By:________________________
a Massachusetts business trust and its general partner Name:
Title:
By:________________________
Name:
Title:
FEA:
---
XXXXXXX EQUITIES OF ARIZONA, LLC,
an Arizona limited liability company
By: __________________
Name:
Title:
12
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 the 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 Participant" means Xxxxxxx Partners, LLC, an
Arizona limited liability company.
(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
the 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 seventy percent (70%).
(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 the 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 the 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. The 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), the 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 the
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 the 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 the 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
in connection with an Expansion Lease where the Foothills Earnout Units were
previously issued to the 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), the
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 the 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 the 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 the 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 the 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 the Earnout Participant to
receive Foothills Earnout Units and Harrisburg Earnout Units shall, at its
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 the Earnout Participant, the 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 on this
The Treasury form is my correct taxpayer identification number (or I am waiting for a number to be issued to me);
Internal Revenue (2) I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b)
Service 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 Part 3 --
Request for (2) above if you have been notified by the IRS that Awaiting TIN |_|
Taxpayer you are subject to backup withholding because you
Identification have failed to report all interest and dividends on
Number (TIN) your tax return. However, if after being notified by
the IRS that you were subject to backup withholding
you received another notification from the IRS that
you are no longer subject to backup withholding, do
not cross out item (2).
-------------------------------------------------------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER (Applicable only if the box in Part 3 above is checked)
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed
or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or
Social Security Administration office, or (b) I intend to mail or deliver an application in the near future. I understand that if
I do not provide a taxpayer identification number within sixty days, 28 percent of all reportable payments made to me thereafter
will be withheld until I provide a taxpayer identification number.
-------------------------------------------------------------------------------------------------------------------------------
XXXXXXX PARTNERS, LLC,
an Arizona limited liability company
By: ________________________________
Name: Xxxxxxxx Xxxxxxx
Title: Manager
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 Partners, LLC, 0000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxx Xxxxxxx.
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 PARTNERS, LLC,
an Arizona limited liability company
By: ________________________________
Name: Xxxxxxxx Xxxxxxx
Title: Manager
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 FP 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 FP 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 Xxxxxxx Partners, LLC Redemption Agreement dated as of
August 13, 2004, among Xxxxxxx Equities Operating Partnership, LP, Xxxxxxx
Partners, LLC, Xxxxxxx Equities of Arizona, LLC, Xxxxxxx Holdings Business Trust
I and Xxxxxxx Mall Properties, Inc.
XXXXXXX PARTNERS, LLC,
an Arizona limited liability company
By: _______________________________
Name: Xxxxxxxx Xxxxxxx
Title: Manager
Date: August 13, 2004
