SECURITIES PURCHASE
AGREEMENT
SECURITIES
PURCHASE AGREEMENT (this “ Agreement ”), dated
as of November 3, 2008, between KODIAK CDO I, LTD. (“CDO
I”) and KODIAK CDO II, LTD. (“CDO II”), each a
“ Seller ” and collectively, the “
Sellers ” and FELDMAN MALL PROPERTIES, INC. (the
“ Purchaser ”).
A. CDO I
legally and beneficially owns 28,125 Securities (as defined below)
and CDO II legally and beneficially owns 375 Securities.
B. Each of
the Sellers wishes to sell to the Purchaser, and the Purchaser
wishes to purchase from each of the Sellers, the Securities
beneficially owned by such Seller, on the terms and subject to the
conditions of this Agreement.
C. The
Sellers and the Purchaser now wish to enter into this Agreement to
provide for the acquisition of the Securities as set forth
herein.
In consideration
of the premises and the mutual covenants and the agreements herein
set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as
follows:
Section 1.
Definitions . As used in this Agreement, the following terms
have the meanings stated:
“
Affiliate ” of a Person means any other Person that
directly or indirectly controls, is controlled by or is under
common control with, the Person or any of its
subsidiaries.
“ Closing
Date ” means the earlier of (a) December 30, 2008
and (b) the date on which the transactions contemplated in
that certain Agreement of Sale dated November [ ], 2008, by and
between Inland American Real Estate Trust, Inc., FMP Northgate LLC,
FMP Stratford LLD and FMP Denton LP close, or such other date as
may be agreed by the parties hereto.
“
Company ” means Feldman Equities Operating
Partnership, LP, a Delaware limited partnership.
“
Person ” means an individual, a corporation, a
partnership, a limited liability company, an association, a trust
or any other entity or organization, including, without limitation,
a governmental body.
“
Purchase Price ” means an aggregate amount in cash
equal to $5,265,803, to be paid to the Sellers as set forth in
Schedule A of this Agreement.
“
Purchased Securities ” means Securities having a
stated liquidation amount in the aggregate of
$28,500,000.00.
“
Securities ” means Preferred Securities issued
pursuant to the Trust Documents, each having a stated liquidation
amount of $1,000.00 and representing an undivided beneficial
interest in the assets of the Trust.
“
Securities Act ” means the Securities Act of 1933, as
amended.
“
Transfer ” means a direct or indirect offer, transfer,
sale, assignment, pledge, hypothecation or other disposition of all
or any interest in the Securities.
“
Trust ” means FMP Statutory Trust I, a Delaware
statutory trust.
“ Trust
Documents ” means the Amended and Restated Trust
Agreement dated as of March 13, 2006 among the Company, as
depositor, the Trustee, as property trustee, The Bank of New York
(Delaware), (successor to Chase Bank USA National Association) as
Delaware Trustee, and the administrative trustees named therein,
and the Junior Subordinated Indenture dated as of March 13,
2006 between the Company and the Trustee, each as amended, restated
or otherwise supplemented.
“
Trustee ” means The Bank of New York Trust Company,
National Association (successor to JPMorgan Chase Bank, National
Association).
Section 2.
Purchase and Sale of the Securities; Purchase Price;
Re-Registration .
(a)
Purchase and Sale of the Securities . Upon the terms and
subject to the conditions set forth in this Agreement, on the
Closing Date, each Seller will;
(a) sell, assign
and transfer to the Purchaser all of such Seller’s right,
title and interest in the Securities legally and beneficially owned
by such Seller; and
(b) deliver to
Purchaser’s DTC account, in accordance with the account
instructions set forth on Schedule B , the Securities
beneficially owned by such Seller.
(b)
Purchase Price . Upon the terms and subject to the
conditions set forth in this Agreement, including those set forth
in Section 3, as payment in full for the Purchased Securities,
the Purchaser will pay, or cause to be paid, to the Sellers on the
Closing Date an aggregate amount in cash equal to the Purchase
Price, by wire transfer of immediately available funds in
accordance with the wire transfer instructions attached hereto on
Schedule A .
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Section 3.
Conditions Precedent .
(a)
Conditions Precedent to the Obligations of the Seller . The
obligations of the Sellers under this Agreement are expressly
subject to the fulfillment of each of the following conditions,
unless waived by the Sellers in writing, on or before the Closing
Date:
(i)
Representations and Warranties; Covenants . The
representations and warranties of the Purchaser set forth in this
Agreement shall be true and correct 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. The Purchaser shall have performed and
complied in all material respects with all of its covenants and
other obligations contained in this Agreement required to be
performed or complied with by the Purchaser on or before the
Closing Date.
(ii) Purchase
Price . The Sellers shall have received the Purchase Price by
wire transfer of immediately available funds in accordance with the
provisions of Section 2(b) hereof.
(b)
Conditions Precedent to the Obligations of the Purchasers .
The obligations of the Purchaser under this Agreement are expressly
subject to the fulfillment of each of the following conditions,
unless waived by the Purchaser in writing, on or before the Closing
Date:
(i)
Representations and Warranties; Covenants . The
representations and warranties of the Sellers set forth in this
Agreement shall be true and correct 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. The Sellers shall have performed and
complied in all material respects with all of its covenants and
other obligations contained in this Agreement required to be
performed or complied with by the Sellers on or before the Closing
Date.
(ii)
Securities . The Purchaser shall have received the Purchased
Securities in its DTC account.
Section 4.
Representations and Warranties of the Sellers . Each Seller,
on behalf of itself only and not jointly with the other Seller,
hereby represents and warrants to Purchaser as of the date of this
Agreement and as of the Closing Date as follows:
(a) Existence
and Power . Seller (i) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
organization and (ii) has all requisite power and authority to
execute and deliver this Agreement and to consummate the
transactions described herein, including, without limitation, the
sale of the Securities.
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(b)
Authorization: Binding Effect . The execution and delivery
by the Seller of this Agreement, the performance by the Seller of
its obligations under this Agreement and the consummation of the
transactions described herein by the Seller, including, without
limitation, the sale of the Securities, has been duly authorized by
all requisite action on the part of the Seller. This Agreement is
the legal, valid and binding obligation of the Seller enforceable
against the Seller in accordance with its terms, except that such
enforcement (i) may be limited by bankruptcy, insolvency,
moratorium or similar laws affecting creditors’ rights
generally and (ii) is subject to the availability of equitable
remedies, as determined in the discretion of the court before which
such a proceeding may be brought.
(c)
Contravention . Neither the execution, delivery and
performance of this Agreement by the Seller nor the consummation of
the transactions described herein, including, without limitation,
the sale of the Securities, by the Seller will (with or without
notice or lapse of time or both) (i) violate or breach any
provision of the Seller’s organizational or governing
documents, (ii) violate or breach any statute, law, rule,
regulation or order by which the Seller or any of its properties,
including, without limitation, the Securities, may be bound or
affected; or (iii) breach or result in a default under, any
material contract or material agreement to which the Seller is a
party or by which the Seller or any of its properties, including,
without limitation, the Securities, may be bound or
affected.
(d)
Consents . No approval, consent, authorization or order of,
notice to or registration or filing with, or any other action by,
any governmental authority or any other Person is required in
connection with (i) the due execution and delivery by the
Seller of this Agreement and the performance of the Seller’s
obligations hereunder, and (ii) the consummation of the
transactions described herein, including, without limitation, the
sale of the Securities hereunder.
(e)
Litigation . There is no action, lawsuit, arbitration, claim
or proceeding, pending, or to the knowledge of the Seller,
threatened, against the Seller, that involves any of the
transactions described in this Agreement or the
Securities.
(f) Title to
Securities . CDO I represents that it is the sole legal and
beneficial owner of 28,125 of the Securities free and clear of all
liens, claims, security interests, encumbrances, transfer
restrictions, options, charges, voting trusts, voting agreements
and restrictions of any nature whatsoever other than as imposed
under applicable securities laws or the Trust Documents. CDO II
represents that it is the sole legal and beneficial owner of 375 of
the Securities free and clear of all liens, claims, security
interests, encumbrances, transfer restrictions, options, charges,
voting trusts, voting agreements and restrictions of any nature
whatsoever other than as imposed under
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applicable
securities laws or the Trust Documents. Upon delivery on the
Closing Date to the Purchaser’s DTC account, in accordance
with the account instructions set forth on Schedule B ,
the Securities, and upon the Seller’s receipt of the Purchase
Price, the Purchaser will become the sole legal and beneficial
owner of the Securities free and clear of any liens, claims,
security interests, encumbrances, transfer restrictions, options,
charges, voting trusts, voting agreements and restrictions of any
nature whatsoever other than as imposed under applicable securities
laws or the Trust Documents.
(g) Securities
Laws . Seller has not offered to sell any portion of the
Securities or any interest therein in a manner which violates any
applicable securities law or would require the sale hereunder to be
registered under the Securities Act or any other applicable
securities laws.
(h) Affiliate
Status . Seller is not, and has never been, an affiliate of the
Company or the Trust.
(i)
Sophisticated Seller . The Seller is familiar with the terms
of securities with characteristics similar to the Securities.
Seller is a sophisticated seller with respect to the Securities and
has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of such sale,
is aware of and has considered the financial risks and financial
hazards of selling the Securities on the terms set forth in this
Agreement.
(j) Adequate
Information; Independent Decision-Making . Seller acknowledges
that it has received such information as, in its judgment, is
necessary for it to make an informed decision to sell the
Securities. Seller has had access to and has reviewed all
information concerning the business, assets and financial condition
of the Company and the Trust that a reasonable person would deem
relevant or appropriate to a determination whether to continue to
own or to sell the Securities and to enable the Seller to make a
fully informed decision to sell the Securities to the Purchaser. In
making the decision to sell the Securities, Seller has relied
solely on information obtained by Seller from sources other than
the Purchaser or any of their Affiliates, accountants, counsel or
other representatives and has independently, without reliance upon
the Purchaser, other than on the representations and warranties of
the Purchaser expressly set forth in this Agreement, made its own
analysis and decision to sell the Securities to the Purchaser.
Seller understands and acknowledges that neither the Purchaser nor
any of its Affiliates, accountants, counselor other representatives
makes or has made any representation or warranty, express or
implied, as to the accuracy or completeness of any of the
information (i) concerning the Trust, the Company, their
respective financial condition, any Affiliates of the Trust or the
Company or the
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Securities or
(ii) otherwise used by Seller in making its decision to sell
the Securities to the Purchaser hereunder, nor will it have any
liability or responsibility to Seller for the accuracy or
completeness of any such information, or relating to or resulting
from the use of such information by the Seller or any errors
therein or omissions there from.
(k)
Non-Disclosure of Information; Waiver . Seller acknowledges
and expressly agrees that (i)&n
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