EXHIBIT 10.8
EXECUTION
XXXXX 1ST STEP
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT made as of August 13, 2004 (this
"Agreement"), by and between XXXXXXX EQUITIES OPERATING PARTNERSHIP, LP, a
Delaware limited partnership (the "Partnership"), and XXXXX XXXXX, an individual
("Contributing Member"). XXXXXXX EQUITIES OF ARIZONA, LLC, an Arizona limited
liability company ("FEA") joins in this Agreement for the purposes set forth in
Sections 1 and 2 below. Capitalized terms not defined herein shall have the
meanings ascribed to such terms in that certain Operating Agreement of Xxxxxxx
Equities of Arizona, LLC dated as of April 1, 2002 (the "FEA Operating
Agreement"), among Xxxxxxx Partners, LLC, an Arizona limited liability company,
Contributing Member, Xxxxx Xxxxxx, Xxxxxxxx Xxxxxxx and Xxxxxx Xxxxxxx, each an
individual.
RECITALS:
A. Contributing Member is a member and manager of FEA, a party to the FEA
Operating Agreement and currently owns membership interests in FEA,
including a Percentage Interest equal to 15% (such membership interests,
Percentage Interest and all right, title and interest of Contributing
Member in and to FEA (as a member and manager) collectively referred to as
the "Membership Interests").
B. Contributing Member desires to contribute and transfer the Membership
Interests to the Partnership in exchange for a 49.995% limited partnership
interest in the Partnership (the "Subscribed Interests") and the
Partnership has agreed to accept such contribution.
C. Contributing Member, the Partnership and FEA now wish to confirm and
memorialize in writing their agreement relating to the contribution of the
Membership Interests and the issuance of the Subscribed Interests.
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. Assignment Agreement. Contemporaneously herewith, Contributing Member has
executed that certain Assignment of Membership Interest dated as of the date
hereof (the "Assignment Agreement"), among Contributing Member, Xxxxx Xxxxxx and
the Partnership, whereby, among other things, Contributing Member assigned to
the Partnership the Membership Interests. The Partnership, Contributing Member
and FEA hereby confirm the assignment of the Membership Interests from
Contributing Member to the Partnership.
2. Contribution and Subscription.
2.1 Further to the Assignment Agreement and in exchange for the
Membership Interests contributed pursuant thereto, subject to the terms hereof,
the Partnership hereby issues to Contributing Member the Subscribed Interests.
2.2 Contributing Member 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 Assignment Agreement, the Accredited Investor Questionnaire, Form
W-9 and FIRPTA Affidavit collectively referred to as, the "Subscription
Documents").
2.3 Confirmation by FEA. By its execution of this Agreement, FEA
hereby:
(a) confirms that this Agreement satisfies all of the
requirements of the FEA Operating Agreement to fully accomplish the transfer of
the Membership Interests contemplated by the Assignment Agreement;
(b) confirms that, upon the consummation of the assignment of
the Membership Interests pursuant to the Assignment Agreement, the Partnership
shall have the right to exercise all of the rights and privileges that
Contributing Member had as owner of the Membership Interests as of the date
hereof; and
(c) agrees to xxxx its records to reflect that any and all
notices relating to the Membership Interests shall thereafter be given to the
Partnership in accordance with the FEA Operating Agreement as follows:
Xxxxxxx Equities of Arizona, LLC
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: 000-000-0000
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
3. Representations, Warranties and Covenants of Contributing Member.
Contributing Member hereby acknowledges, represents and warrants to, and
covenants and agrees with the Partnership that:
3.1 Authority; Authorization; Execution and Delivery.
(a) Contributing Member has full power and authority to enter
into the Subscription Documents and to consummate the transactions contemplated
by the Subscription Documents.
(b) The execution and delivery of the Subscription Documents
by Contributing Member and the consummation by Contributing Member of the
transactions contemplated by the Subscription Documents have been duly
authorized by all necessary action on the part of Contributing 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 Contributing Member is a
party or by which Contributing Member is bound or with any judgment, decree,
statute, order, rule or regulation applicable to Contributing Member or
Contributing Member's assets, and, if Contributing Member is not an individual,
will not violate any provisions of the organizational or other formation or
governing documents of Contributing Member.
(c) The Subscription Documents have been duly executed and
delivered by Contributing Member and constitute valid and legally binding
obligations of Contributing Member, enforceable against Contributing 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 Contributing Member is an
individual, has legal competence and capacity to execute the same, or, if
Contributing Member is not an individual, the signatory has been duly authorized
to execute the same on behalf of Contributing Member.
2
3.2 Purchase for Investment.
(a) Contributing Member is acquiring the Subscribed Interests
for Contributing Member's own account (or if Contributing 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 Subscribed Interests.
(b) Contributing Member shall not, directly or indirectly,
transfer all or any part of the Subscribed Interests (or solicit any offers to
buy, purchase or otherwise acquire or take a pledge of all or any part of the
Subscribed Interests) 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 terms of the Agreement of Limited Partnership of the
Partnership (as amended from time to time, the "LP Agreement").
(c) Contributing Member understands that (i) Contributing
Member must bear the economic risk of an investment in the Subscribed Interests
for an indefinite period of time because, among other reasons, the offering and
sale of the Subscribed Interests has not been registered under the Securities
Act and, therefore, the Subscribed Interests 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
Interests are further restricted by the provisions of the LP Agreement, and may
be restricted by other applicable securities laws. If at any time the Subscribed
Interests are evidenced by certificates or other documents, each such
certificate or other document shall contain a legend stating that (x) the
Subscribed Interests (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 the Subscribed Interests is further subject to
restrictions contained in the LP Agreement, and may not be sold, transferred or
assigned unless and to the extent permitted by, and in accordance with, the
provisions of the LP Agreement.
3.3 Information.
(a) Contributing Member has carefully reviewed this Agreement,
the form of the LP Agreement and the other Subscription Documents. Contributing
Member has been provided an opportunity to ask questions of, and Contributing
Member has received answers thereto satisfactory to Contributing Member from,
the Partnership or its representatives regarding the terms and conditions of the
Subscribed Interests, and Contributing Member has obtained all additional
information requested by Contributing Member of the Partnership and its
representatives to verify the accuracy of all information furnished to
Contributing Member regarding the Subscribed Interests.
(b) Contributing Member 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 Interests.
3
(c) Contributing Member has been advised to consult with his
or its tax, legal and other advisors regarding the subscription of the
Subscribed Interests and its effects, the tax consequences of making and not
making a subscription hereunder, and has obtained, in Contributing Member's
judgment, sufficient information to evaluate the merits and risks of such
subscription and investment.
(d) Contributing 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 Subscribed Interests that is not
contained in this Agreement.
3.4 Economic and Liquidity Risk.
(a) Contributing Member has such knowledge and experience in
financial and business matters such that Contributing Member is capable of
evaluating the merits and risks of making a subscription for the Subscribed
Interests, and that Contributing Member has evaluated the risks of investing in
the Subscribed Interests and has determined that they are a suitable investment.
(b) Contributing Member understands that an investment in the
Subscribed Interests is a speculative investment that involves very significant
risks and tax uncertainties and that Contributing Member is prepared to bear all
of the economic, tax and other risks of an investment in the Subscribed
Interests for an indefinite period of time, and is able to withstand a total
loss of Contributing Member's investment in the Subscribed Interests.
(c) Contributing Member has adequate net worth and no need for
liquidity in this investment.
3.5 Eligibility; Accredited Investor Status. Contributing Member is an
"accredited investor" as defined in Regulation D under the Securities Act.
Contributing Member will, upon request of the Partnership, execute, deliver
and/or provide any additional documents deemed by the Partnership to be
necessary or desirable to confirm such status.
3.6 Ownership of Membership Interests.
(a) Contributing Member has good and marketable title to the
Membership Interests and the Membership Interests are free and clear of all
pledges, claims, liens, restrictions, charges, encumbrances, security interests,
conditional sales agreements and other obligations of any kind or nature.
(b) Contributing Member is not (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. Contributing Member will, upon request of the
Partnership, execute, deliver and/or provide any additional documents deemed by
the Partnership to be necessary or desirable to confirm the foregoing.
3.7 Residence; Etc. The signature pages attached to this Agreement
correctly set forth
(a) if Contributing Member is a natural person, the principal
residence of Contributing Member;
4
(b) if Contributing 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 Contributing Member;
(c) if Contributing Member is an Entity other than a general
partnership, the state of incorporation, organization or formation of
Contributing Member;
(d) if Contributing 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
Contributing Member that is a natural person; and
(e) if Contributing 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 Contributing Member that is an Entity.
3.8 Status as Foreign Person. Contributing 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.
3.9 Continuing Efforts. Subject to the terms and conditions herein
provided, Contributing 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 the Subscription Documents.
3.10 No Brokers or Finders. Contributing 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 the
Subscription Documents or the Subscribed Interests.
4. Representations, Warranties and Covenants of the Partnership. The Partnership
hereby acknowledges, represents and warrants to, and covenants and agrees with,
Contributing Member that:
4.1 Authorization.
(a) The Partnership has full power and authority to enter into
this Agreement and the Assignment Agreement and to consummate the transactions
contemplated thereby.
(b) The execution and delivery of the Subscription Documents
to which it is a party by the Partnership and the consummation by the
Partnership of the transactions contemplated thereby have been duly authorized
by all necessary action on the part of the Partnership.
(c) The Subscription Documents have been duly executed and
delivered by the Partnership and constitute valid and legally binding
obligations of the Partnership, enforceable against the Partnership 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.
4.2 Issuance. The Subscribed Interests are duly authorized units of
limited partner interest in the Partnership, issued in the name of Contributing
Member, free and clear of all liens, claims and encumbrances other than those
created by Contributing Member.
4.3 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.
5
5. 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.
6. Indemnity.
6.1 Contributing Member hereby agrees to indemnify and defend the
Partnership, its 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 Contributing Member pursuant to the Subscription Documents.
6.2 The Partnership hereby agrees to indemnify and defend Contributing
Member against any and all damage, loss, liability and expense incurred or
suffered by Contributing Member arising 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.
7. Amendments to Operating Agreement; Power of Attorney. By executing this
Agreement, Contributing Member 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 amendments to the FEA Operating Agreement, the
LP Agreement and any other document and agreements relating to the Subscribed
Interests, on Contributing Member's behalf and in Contributing Member's name, as
the Partnership may deem necessary or desirable.
8. General Provisions.
8.1 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.
8.2 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 Contributing Member: Xxxxx Xxxxx
00000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
If to the Partnership: Xxxxxxx Equities Operating Partnership, LP
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: 000-000-0000
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
6
All such notices, requests and other communications will (a) if delivered
personally to the applicable addressees as provided in this Section 8.2, be
deemed given upon delivery; (b) if delivered by facsimile transmission to the
applicable facsimile numbers as provided in this Section 8.2, be deemed given
upon receipt; and (c) if delivered by mail to the applicable addressees as
provided in this Section 8.2, 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 8.2). 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 8.2.
8.3 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 Contributing 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.
8.4 Entire Agreement. The Subscription Documents contain the entire
agreement of the parties with respect to this subscription, and there are no
representations, warranties, covenants or other agreements except as stated or
referred to herein or therein.
8.5 Assignability. This Agreement is not transferable or assignable by
any party hereto. This Agreement shall be for the benefit of the parties hereto.
8.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
8.7 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.
8.8 Further Assurances. Contributing Member will, from time to time,
execute and deliver to the Partnership all such other and further instruments
and documents and take or cause to be taken all such other and further action as
the Partnership may reasonably request in order to effect the transactions
contemplated by this Agreement. Without limiting the foregoing, the Partnership
may request from Contributing Member from time to time such information as it
may deem necessary to determine the eligibility of Contributing Member to hold
Subscribed Interests or to enable the Partnership to determine Contributing
Member's compliance with applicable regulatory requirements or tax status, and
Contributing Member shall provide such information as may reasonably be
requested.
7
8.9 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.
8.10 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.
8.11 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.]
8
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.
CONTRIBUTING MEMBER:
-------------------
--------------------
Xxxxx Xxxxx
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
9
EXECUTION
XXXXX 1ST STEP
EXHIBIT A
FORM W-9
------------------------ ------------------------------------------------------------- ----------------------------------------
SUBSTITUTE Part 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT Social Security
Form W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW Number(s) or Employer
Identification Number
------------------------ ------------------------------------------------------------- ----------------------------------------
Department of Part 2 -- Certification -- Under penalties of perjury, I certify that: (1) The number shown
The Treasury on this form is my correct taxpayer identification number (or I am waiting for a number to Internal
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).
------------------------ ------------------------------------------------------------- ----------------------------------------
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).
------------------------ ------------------------------------------------------------- ----------------------------------------
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.
------------------------ ------------------------------------------------------------- ----------------------------------------
Xxxxx Xxxxx
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 the Partnership and FEA that
withholding of tax is not required, the undersigned hereby certifies the
following as of the date hereof:
1. Contributing 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. Contributing 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. Contributing Member's Social Security Number (for individuals) or
Employer Identification Number (for non-individuals) is: _____________; and
4. Contributing Member's address is: Xxxxx Xxxxx,14825 Xxxxx 00xx
Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
In addition, Contributing Member 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 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.
---------------------------------
Xxxxx Xxxxx
Date: August 13, 2004
--------------------------------------------------------------------------------
EXHIBIT A (CONTINUED)
ACCREDITED INVESTOR QUESTIONNAIRE
Contributing 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 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 Interests, 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 Interests, 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 meanings ascribed to such
terms in that certain Contribution Agreement dated as of August 13, 2004, among
Xxxxxxx Equities Operating Partnership, LP, Xxxxx Xxxxx and Xxxxxxx Equities of
Arizona, LLP.
Dated: August 13, 2004
---------------
Xxxxx Xxxxx
