Representations and Warranties by the Parties. (a) Each Partner (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner, respectively) represents and warrants to each other Partner that (i) subject to the last sentence of this Section 3.04(a), such Partner is neither a "foreign person" within the meaning of Code Section 1445(f) nor a "foreign partner" within the meaning of Code Section 1446(e), (ii) such Partner does not own, directly or indirectly, (a) nine point eight percent (9.8%) or more of the total combined voting power of all classes of stock entitled to vote, or nine point eight percent (9.8%) or more of the total number of shares of all classes of stock, of any corporation that is a tenant in the Real Property or (b) an interest of nine point eight percent (9.8%) or more in the assets or net profits of any tenant in the Real Property, and (iii) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms. Notwithstanding anything contained herein to the contrary, in the event that the representation contained in the foregoing clause (i) would be inaccurate if given by a Partner, such Partner (x) shall not be required to make and shall not be deemed to have made such representation, if it delivers to the REIT General Partner in connection with or prior to its execution of this Agreement written notice that it may not truthfully make such representation, (y) hereby agrees that it is subject to, and hereby authorizes the REIT General Partner to withhold, all withholdings to which such a "foreign person" or "foreign partner," as applicable, is subject under the Code and (z) hereby agrees to cooperate fully with the REIT General Partner with respect to such withholdings, including by effecting the timely completion and delivery to the REIT General Partner of all governmental forms required in connection therewith. (b) Each Partner (including, without limitation, each Substituted Limited Partner as a condition to becoming a Substituted Limited Partner) represents, warrants and agrees that it has acquired its interest in the Partnership for its own account for investment purposes only and not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof, and not with a view toward selling or otherwise distributing such interest or any part thereof at any particular time or under any predetermined circumstances, in each case, in a transaction that would require registration under the Securities Act. Each Partner further represents and warrants that it is an accredited investor (within the meaning of Regulation D under the Securities Act), able and accustomed to handling sophisticated financial and tax matters for itself, particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the funds that it has invested in the Partnership in what it understands to be a highly speculative and illiquid investment. (c) The representations and warranties contained in Sections 3.04(a) and 3.04(b) hereof shall survive the execution and delivery of this Agreement by each Partner (and, in the case of an Additional Limited Partner or a Substituted Limited Partner, the admission of such Additional Limited Partner or Substituted Limited Partner as a Limited Partner in the Partnership) and the dissolution, liquidation and termination of the Partnership. (d) Each Partner (including, without limitation, each Substituted Limited Partner as a condition to becoming a Substituted Limited Partner) hereby acknowledges that no representations as to potential profit, cash flows, funds from operations or yield, if any, in respect of the Partnership have been made by the Company, the A-1 Series, any Partner or any employee or representative or Affiliate of the Company, the A-1 Series or any Partner, and that projections and any other information, including, without limitation, financial and descriptive information and documentation, that may have been in any manner submitted to such Partner shall not constitute any representation or warranty of any kind or nature, express or implied.
Appears in 1 contract
Representations and Warranties by the Parties. (a) Each Partner (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner, respectively) represents and warrants to each other Partner that that, except as the General Partner otherwise agrees in writing to the contrary:
(i) the consummation of the transactions contemplated by this Agreement to be performed by such Partner will not result in a breach or violation of, or a default under, any material agreement by which such Partner or any of such Partner’s property is bound, or any statute, regulation, order or other law to which such Partner is subject;
(ii) if such Partner is an individual, such Partner has the legal capacity to enter into this Agreement and perform such Partner’s obligations hereunder;
(iii) if such Partner is not an individual, its execution and delivery of this Agreement and all transactions contemplated by this Agreement to be performed by it have been duly authorized by all necessary action, including without limitation, that of its general partner(s), committee(s), trustee(s), beneficiaries, director(s), member(s) and/or stockholder(s), as the case may be, as required;
(iv) subject to the last sentence of this Section 3.04(a), such Partner is a “United States person” within the meaning of Section 7701(a)(30) of the Code;
(v) subject to the last sentence of this Section 3.04(a), such Partner is neither a "“foreign person" ” within the meaning of Code Section 1445(f) nor a "“foreign partner" ” within the meaning of Code Section 1446(e), ;
(ii) such Partner does not own, directly or indirectly, (a) nine point eight percent (9.8%) or more of the total combined voting power of all classes of stock entitled to vote, or nine point eight percent (9.8%) or more of the total number of shares of all classes of stock, of any corporation that is a tenant in the Real Property or (b) an interest of nine point eight percent (9.8%) or more in the assets or net profits of any tenant in the Real Property, and (iiivi) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization. fraudulent conveyance, moratorium or similar laws affecting creditors’ rights generally, as from time to time in effect, or the application of equitable principles;
(vii) upon request of the General Partner, it will promptly disclose to the General Partner the amount of REIT Shares or other capital shares of the General Partner that it actually owns or Constructively Owns; and
(viii) without the consent of the General Partner, which may be given or withheld in its sole discretion, it shall not take any action that would cause the Partnership at any time to have more than one hundred (100) partners (including as partners those Persons indirectly owning an interest in the Partnership through a partnership, limited liability company, S corporation or grantor trust (such entity, a “flow through entity”), but only if substantially all of the value of such Person’s interest in the flow through entity is attributable to the flow through entity’s interest (direct or indirect) in the Partnership);
(ix) Notwithstanding anything contained herein to the contrary, in if the event that the representation representations contained in the foregoing clause clauses (iiv) and (v) would be inaccurate if given by a Partner, such Partner (xA) shall not be required to make and shall not be deemed to have made such representation, if it delivers to the REIT General Partner in connection with or prior to its execution of this Agreement written notice that it may not truthfully make such representation, (yB) hereby agrees that it is subject to, and hereby authorizes the REIT General Partner to withhold, all withholdings to which such a "“foreign person" ” or "“foreign partner," ” as applicable, is subject under the Code and (zC) hereby agrees to cooperate fully with the REIT General Partner with respect to such withholdings, including by effecting the timely completion and delivery to the REIT General Partner of all governmental forms required in connection therewith.
(b) Each Partner (including, without limitation, each Additional Limited Partner and Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner) represents, warrants and agrees that it has acquired and continues to hold its interest in the Partnership for its own account for investment purposes only and not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof, and not with a view toward selling or otherwise distributing such interest or any part thereof at any particular time or under any predetermined circumstances, in each case, in a transaction that would require registration under the Securities Act. Each Partner further represents and warrants that it is an accredited investor (within the meaning of Regulation D under the Securities Act)a sophisticated investor, able and accustomed to handling sophisticated financial and tax matters for itself, particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the funds that it has invested in the Partnership in what it understands to be a highly speculative and illiquid investment.
(c) The representations and warranties contained in Sections 3.04(a) and 3.04(b) hereof shall survive the execution and delivery of this Agreement by each Partner (and, in the case of an Additional Limited Partner or a Substituted Limited Partner, the admission of such Additional Limited Partner or Substituted Limited Partner as a Limited Partner in the Partnership) and the dissolution, liquidation and termination winding up of the Partnership.
(d) Each Partner (including, without limitation, each Additional Limited Partner and Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner) hereby acknowledges that no representations as to potential profit, cash flows, funds from operations or yield, if any, in respect of the Partnership or the General Partner have been made by the Company, the A-1 SeriesGeneral Partner, any Partner or any employee or representative or Affiliate of the Company, the A-1 Series General Partner or any Partner, and that projections and any other information, including, without limitation, financial and descriptive information and documentation, that which may have been in any manner submitted to such Partner shall not constitute any representation or warranty of any kind or nature, express or implied.
(e) Each Partner understands that if, for any reason; the Partnership’s actual or Constructive Ownership of REIT Shares or other capital shares of the General Partner violates the limitations set forth in the Charter, then (x) some or all of the Redemption Rights of the Partners may become non-exercisable; and (y) some or all of the REIT Shares owned by the Partners may be automatically transferred to a trust for the benefit of a charitable beneficiary, as provided in the Charter.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Schottenstein Realty Trust, Inc.)
Representations and Warranties by the Parties. (a) Each Partner (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner, respectively) that is an individual represents and warrants to each other Partner Partner(s) that (i) the consummation of the transactions contemplated by this Agreement to be performed by such Partner will not result in a breach or violation of, or a default under, any material agreement by which such Partner or any of such Partner’s property is bound, or any statute, regulation, order or other law to which such Partner is subject, (ii) subject to the last sentence of this Section 3.04(a3.4(a), such Partner is neither a "“foreign person" ” within the meaning of Code Section 1445(f) nor a "“foreign partner" ” within the meaning of Code Section 1446(e), (ii) such Partner does not own, directly or indirectly, (a) nine point eight percent (9.8%) or more of the total combined voting power of all classes of stock entitled to vote, or nine point eight percent (9.8%) or more of the total number of shares of all classes of stock, of any corporation that is a tenant in the Real Property or (b) an interest of nine point eight percent (9.8%) or more in the assets or net profits of any tenant in the Real Property, and (iii) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms. Notwithstanding anything contained herein to the contrary, in the event that the representation contained in the foregoing clause (iii) foregoing would be inaccurate if given by a Partner, such Partner (xw) shall not be required to make and shall not be deemed to have made such representation, if it delivers (x) shall deliver to the REIT General Partner in connection with or prior to its execution of this Agreement written notice that it may not truthfully make such representation, (y) hereby agrees that it is subject to, and hereby authorizes the REIT General Partner to withhold, all withholdings to which such a "“foreign person" ” or "“foreign partner," ”, as applicable, is subject under the Code and (z) hereby agrees to cooperate fully with the REIT General Partner with respect to such withholdings, including by effecting the timely completion and delivery to the REIT General Partner of all governmental internal revenue forms required in connection therewith.
(b) Each Partner (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner) that is not an individual represents and warrants to each other Partner(s) that (i) all transactions contemplated by this Agreement to be performed by it have been duly authorized by all necessary action, including, without limitation, that of its general partner(s), committee(s), trustee(s), beneficiaries, directors and/or shareholder(s), as the case may be, as required, (ii) the consummation of such transactions shall not result in a breach or violation of, or a default under, its partnership or operating agreement, trust agreement, articles, charter or bylaws, as the case may be, any material agreement by which such Partner or any of such Partner’s properties or any of its partners, members, beneficiaries, trustees or shareholders, as the case may be, is or are bound, or any statute, regulation, order or other law to which such Partner or any of its partners, members, trustees, beneficiaries or shareholders, as the case may be, is or are subject, (iii) subject to the last sentence of this Section 3.4(b), such Partner is neither a “foreign person” within the meaning of Code Section 1445(f) nor a “foreign partner” within the meaning of Code Section 1446(e), and (iv) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms. Notwithstanding anything contained herein to the contrary, in the event that the representation contained in clause (iii) foregoing would be inaccurate if given by a Partner, such Partner (w) shall not be required to make and shall not be deemed to have made such representation, (x) shall deliver to the General Partner in connection with or prior to its execution of this Agreement written notice that it may not truthfully make such representation, (y) hereby agrees that it is subject to, and hereby authorizes the General Partner to withhold, all withholdings to which such a “foreign person” or “foreign partner”, as applicable, is subject under the Code and (z) hereby agrees to cooperate fully with the General Partner with respect to such withholdings, including by effecting the timely completion and delivery to the General Partner of all internal revenue forms required in connection therewith.
(c) Each Partner (including, without limitation, each Substituted Limited Partner as a condition to becoming a Substituted Limited Partner) represents, warrants and agrees that it has acquired and continues to hold its interest in the Partnership for its own account for investment purposes only and not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof, and not with a view toward selling or otherwise distributing such interest or any part thereof at any particular time or under any predetermined circumstances, in each case, in a transaction that would require registration under the Securities Act. Each Partner further represents and warrants that it is an accredited investor (within the meaning of Regulation D under the Securities Act)a sophisticated investor, able and accustomed to handling sophisticated financial and tax matters for itself, particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the funds that it has invested in the Partnership in what it understands to be a highly speculative and illiquid investment.
(cd) The representations and warranties contained in Sections 3.04(a3.4(a), 3.4(b) and 3.04(b3.4(c) hereof shall survive the execution and delivery of this Agreement by each Partner (and, in the case of an Additional Limited Partner or a Substituted Limited Partner, the admission of such Additional Limited Partner or Substituted Limited Partner as a Limited Partner in the Partnership) and the dissolution, liquidation and termination of the Partnership.
(de) Each Partner (including, without limitation, each Substituted Limited Partner as a condition to becoming a Substituted Limited Partner) hereby acknowledges that no representations as to potential profit, cash flows, funds from operations cash available for distribution, yield or yieldother metrics, if any, in respect of the Partnership or the General Partner have been made by the Company, the A-1 Series, any Partner or any employee or representative or Affiliate of the Company, the A-1 Series or any Partner, and that projections and any other information, including, without limitation, financial and descriptive information and documentation, that may have been in any manner submitted to such Partner Partner, if any, shall not constitute any representation or warranty of any kind or nature, express or implied.
(f) Notwithstanding the foregoing, the General Partner may, in its sole and absolute discretion, permit the modification of any of the representations and warranties contained in Sections 3.4(a), 3.4(b) and 3.4(c) above as applicable to any Partner (including, without limitation any Additional Limited Partner or Substituted Limited Partner or any transferee of either) provided that such representations and warranties, as modified, shall be set forth in either (i) a Partnership Unit Designation applicable to the Partnership Units held by such Partner or (ii) a separate writing addressed to the Partnership and the General Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (NorthStar Asset Management Group Inc.)
Representations and Warranties by the Parties. (a) Each Partner (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner, respectively) that is an individual represents and warrants to each other Partner Partner(s) that (i) such Partner has the legal capacity to enter into this Agreement and perform such Partner’s obligations hereunder, (ii) the consummation of the transactions contemplated by this Agreement to be performed by such Partner will not result in a breach or violation of, or a default under, any material agreement by which such Partner or any of such Partner’s property is bound, or any statute, regulation, order or other law to which such Partner is subject, (iii) subject to the last sentence of this Section 3.04(a3.4(a), such Partner is neither a "“foreign person" ” within the meaning of Code Section 1445(f) nor a "“foreign partner" ” within the meaning of Code Section 1446(e), (ii) such Partner does not own, directly or indirectly, (a) nine point eight percent (9.8%) or more of the total combined voting power of all classes of stock entitled to vote, or nine point eight percent (9.8%) or more of the total number of shares of all classes of stock, of any corporation that is a tenant in the Real Property or (b) an interest of nine point eight percent (9.8%) or more in the assets or net profits of any tenant in the Real Property, and (iiiiv) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms. Notwithstanding anything contained herein to the contrary, in the event that the representation contained in the foregoing clause (iii) foregoing would be inaccurate if given by a Partner, such Partner (xw) shall not be required to make and shall not be deemed to have made such representation, if it delivers (x) shall deliver to the REIT General Partner in connection with or prior to its execution of this Agreement written notice that it may not truthfully make such representation, (y) hereby agrees that it is subject to, and hereby authorizes the REIT General Partner to withhold, all withholdings to which such a "“foreign person" ” or "“foreign partner," ”, as applicable, is subject under the Code and (z) hereby agrees to cooperate fully with the REIT General Partner with respect to such withholdings, including by effecting the timely completion and delivery to the REIT General Partner of all governmental internal revenue forms required in connection therewith.
(b) Each Partner (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner) that is not an individual represents and warrants to each other Partner(s) that (i) its execution and delivery of this Agreement and all transactions contemplated by this Agreement to be performed by it have been duly authorized by all necessary action, including, without limitation, that of its general partner(s), committee(s), trustee(s), beneficiaries, directors and/or stockholder(s), as the case may be, as required, (ii) such Partner’s execution and delivery of this Agreement and the consummation of such transactions shall not result in a breach or violation of, or a default under, its partnership or operating agreement, trust agreement, articles, charter or bylaws, as the case may be, any material agreement by which such Partner or any of such Partner’s properties or any of its partners, members, beneficiaries, trustees or stockholders, as the case may be, is or are bound, or any statute, regulation, order or other law to which such Partner or any of its partners, members, trustees, beneficiaries or stockholders, as the case may be, is or are subject, (iii) subject to the last sentence of this Section 3.4(b), such Partner is neither a “foreign person” within the meaning of Code Section 1445(f) nor a “foreign partner” within the meaning of Code Section 1446(e), and (iv) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms. Notwithstanding anything contained herein to the contrary, in the event that the representation contained in clause (iii) foregoing would be inaccurate if given by a Partner, such Partner (w) shall not be required to make and shall not be deemed to have made such representation, (x) shall deliver to the General Partner in connection with or prior to its execution of this Agreement written notice that it may not truthfully make such representation, (y) hereby agrees that it is subject to, and hereby authorizes the General Partner to withhold, all withholdings to which such a “foreign person” or “foreign partner”, as applicable, is subject under the Code and (z) hereby agrees to cooperate fully with the General Partner with respect to such withholdings, including by effecting the timely completion and delivery to the General Partner of all internal revenue forms required in connection therewith.
(c) Each Partner (including, without limitation, each Substituted Limited Partner as a condition to becoming a Substituted Limited Partner) represents, warrants and agrees that it has acquired and continues to hold its interest in the Partnership for its own account for investment purposes only and not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof, and not with a view toward selling or otherwise distributing such interest or any part thereof at any particular time or under any predetermined circumstances, in each case, in a transaction that would require registration under the Securities Act. Each Partner further represents and warrants that it is an accredited investor (within the meaning of Regulation D under the Securities Act)a sophisticated investor, able and accustomed to handling sophisticated financial and tax matters for itself, particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the funds that it has invested in the Partnership in what it understands to be a highly speculative and illiquid investment. Each Partner represents and warrants to each other Partner that there is no action, suit, proceeding or investigation pending or currently threatened against such Partner that questions the validity of this Agreement, the consummation of the transactions contemplated by this Agreement, or the right of such Partner to enter into this Agreement, or to consummate the transactions contemplated hereby. Such Partner is not a party or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality that would interfere with the right of such Partner to enter into this Agreement or to consummate the transactions contemplated hereby.
(cd) The representations and warranties contained in Sections 3.04(a3.4(a), 3.4(b) and 3.04(b3.4(c) hereof shall survive the execution and delivery of this Agreement by each Partner (and, in the case of an Additional Limited Partner or a Substituted Limited Partner, the admission of such Additional Limited Partner or Substituted Limited Partner as a Limited Partner in the Partnership) and the dissolution, liquidation and termination of the Partnership.
(de) Each Partner (including, without limitation, each Substituted Limited Partner as a condition to becoming a Substituted Limited Partner) hereby acknowledges that no representations as to potential profit, cash flows, funds from operations or yield, if any, in respect of the Partnership or the General Partner have been made by the Company, the A-1 Series, any Partner or any employee or representative or Affiliate of the Company, the A-1 Series or any Partner, and that projections and any other information, including, without limitation, financial and descriptive information and documentation, that may have been in any manner submitted to such Partner shall not constitute any representation or warranty of any kind or nature, express or implied.
(f) Notwithstanding the foregoing, the General Partner may, in its sole and absolute discretion, permit the modification of any of the representations and warranties contained in Sections 3.4(a), 3.4(b) and 3.4(c) above as applicable to any Partner (including, without limitation any Additional Limited Partner or Substituted Limited Partner or any transferee of either) provided that such representations and warranties, as modified, shall be set forth in either (i) a Partnership Unit Designation applicable to the Partnership Units held by such Partner or (ii) a separate writing addressed to the Partnership and the General Partner (including a Contribution Agreement).
Appears in 1 contract
Samples: Limited Partnership Agreement (Meruelo Maddux Properties, Inc.)
Representations and Warranties by the Parties. (a) Each Partner (including, without limitation, including each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner, respectively) that is an individual represents and warrants to the Partnership and to each other Partner that (i) such Partner has the legal capacity to enter into this Agreement and perform such Partner’s obligations hereunder, (ii) the consummation of the transactions contemplated by this Agreement will not result in a breach or violation of, or a default under, any agreement by which such Partner or any of such Partner’s property is bound, or any statute, regulation, order or other law to which such Partner is subject, (iii) subject to the last sentence of this Section 3.04(a3.4(a), such Partner is neither a "“foreign person" ” within the meaning of Code Section 1445(f) nor a "“foreign partner" ” within the meaning of Code Section 1446(e), (ii) such Partner does not own, directly or indirectly, (a) nine point eight percent (9.8%) or more of the total combined voting power of all classes of stock entitled to vote, or nine point eight percent (9.8%) or more of the total number of shares of all classes of stock, of any corporation that is a tenant in the Real Property or (b) an interest of nine point eight percent (9.8%) or more in the assets or net profits of any tenant in the Real Property, and (iiiiv) this Agreement is binding upon, and enforceable against, such Partner in accordance with its termsterms (subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of commercial reasonableness, good faith and fair dealing (regardless or whether enforcement is sought in a proceeding at law or in equity)). Notwithstanding anything contained herein to the contrary, in the event that the representation contained in the foregoing clause (iiii) would be inaccurate if given by a Partner, such Partner (x) shall not be required to make and shall not be deemed to have made such representation, representation if it delivers to the REIT General Partner in connection with or prior to its execution of this Agreement written notice that it may not truthfully make such representation, (y) hereby agrees that it is subject to, and hereby authorizes the REIT General Partner to withhold, all withholdings to which such a "“foreign person" ” or "“foreign partner," ” as applicable, is subject under the Code and (z) hereby agrees to cooperate fully with the REIT General Partner with respect to such withholdings, including by effecting the timely completion and delivery to the REIT General Partner of all governmental forms required in connection therewith.
(b) Each Partner (including, without limitation, including each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner, respectively) that is not an individual represents and warrants to the Partnership and to each other Partner that (i) such Partner is duly organized under the laws of its state of formation, and has the requisite power to execute and deliver this Agreement and perform its obligations hereunder, (ii) all transactions contemplated by this Agreement to be performed by it have been duly authorized by all necessary action, including that of its general partner(s), members, committee(s), trustee(s), beneficiaries, directors and/or stockholder(s), as the case may be, as required, (iii) the consummation of such transactions will not result in a breach or violation of, or a default under, its partnership agreement, operating agreement, trust agreement, charter or bylaws or other organizational documents, as the case may be, any agreement by which such Partner or any of such Partner’s property or any of its partners, beneficiaries, trustees or stockholders, as the case may be, is or are bound, or any statute, regulation, order or other law to which such Partner or any of its partners, trustees, beneficiaries or stockholders, as the case may be, is or are subject, (iv) subject to the last sentence of this Section 3.4(b), such Partner is neither a “foreign person” within the meaning of Code Section 1445(f) nor a “foreign partner” within the meaning of Code Section 1446(e), and (v) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of commercial reasonableness, good faith and fair dealing (regardless or whether enforcement is sought in a proceeding at law or in equity)). Notwithstanding anything contained herein to the contrary, in the event that the representation contained in the foregoing clause (iv) would be inaccurate if given by a Partner, such Partner (x) shall not be required to make and shall not be deemed to have made such representation if it delivers to the General Partner in connection with or prior to its execution of this Agreement written notice that it may not truthfully make such representation, (y) hereby agrees that it is subject to, and hereby authorizes the General Partner to withhold, all withholdings to which such a “foreign person” or “foreign partner,” as applicable, is subject under the Code and (z) hereby agrees to cooperate fully with the General Partner with respect to such withholdings, including by effecting the timely completion and delivery to the General Partner of all governmental forms required in connection therewith.
(c) Each Partner (including each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or Substituted Limited Partner, respectively) represents, warrants and agrees that it has acquired its interest in the Partnership for its own account for investment purposes only and not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof, and not nor with a view toward selling or otherwise distributing such interest or any part thereof at any particular time or under any predetermined circumstances, circumstances in each case, in a transaction that would require registration under the Securities Actviolation of securities law. Each Partner further represents and warrants that it is an accredited investor (within the meaning of Regulation D under the Securities Act)a sophisticated investor, able and accustomed to handling sophisticated financial and tax matters for itself, particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the funds that it has invested in the Partnership in what it understands to be a highly speculative and illiquid investment.
(cd) The representations and warranties contained in Sections 3.04(a3.4(a), 3.4(b) and 3.04(b3.4(c) hereof shall survive the execution and delivery of this Agreement by each Partner (and, in the case of an Additional Limited Partner or a Substituted Limited Partner, the admission of such Additional Limited Partner or Substituted Limited Partner as a Limited Partner in the Partnership) and the dissolution, liquidation dissolution and termination winding up of the Partnership.
(d) Each Partner (including, without limitation, each Substituted Limited Partner as a condition to becoming a Substituted Limited Partner) hereby acknowledges that no representations as to potential profit, cash flows, funds from operations or yield, if any, in respect of the Partnership have been made by the Company, the A-1 Series, any Partner or any employee or representative or Affiliate of the Company, the A-1 Series or any Partner, and that projections and any other information, including, without limitation, financial and descriptive information and documentation, that may have been in any manner submitted to such Partner shall not constitute any representation or warranty of any kind or nature, express or implied.
Appears in 1 contract
Samples: Limited Partnership Agreement (Bellingham II Associates, L.L.C.)
Representations and Warranties by the Parties. (a) Each Partner (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner, respectively) represents and warrants to each other Partner that (i) the consummation of the transactions contemplated by this Agreement to be performed by such Partner will not result in a breach or violation of, or a default under, any material agreement by which such Partner or any of such Partner’s property is bound, or any statute, regulation, order or other law to which such Partner is subject, (ii) subject to the last sentence of this Section 3.04(a), such Partner is neither a "“foreign person" ” within the meaning of Code Section 1445(f) nor a "“foreign partner" ” within the meaning of Code Section 1446(e), (ii) such Partner does not own, directly or indirectly, (a) nine point eight percent (9.8%) or more of the total combined voting power of all classes of stock entitled to vote, or nine point eight percent (9.8%) or more of the total number of shares of all classes of stock, of any corporation that is a tenant in the Real Property or (b) an interest of nine point eight percent (9.8%) or more in the assets or net profits of any tenant in the Real Property, and (iii) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms. Notwithstanding anything contained herein to the contrary, in the event that the representation contained in the foregoing clause (iii) would be inaccurate if given by a Partner, such Partner (xw) shall not be required to make and shall not be deemed to have made such representation, if it delivers to the REIT General Partner in connection with or prior to its execution of this Agreement written notice that it may not truthfully make such representation, (yx) hereby agrees that it is subject to, and hereby authorizes the REIT General Partner to withhold, all withholdings to which such a "“foreign person" ” or "“foreign partner," ” as applicable, is subject under the Code Code, including any withholding applicable to a Transfer of such Partner’s interest in the Partnership under Section 1446(f) and (zy) hereby agrees to cooperate fully with the REIT General Partner with respect to such withholdings, including by effecting the timely completion and delivery to the REIT General Partner of all governmental forms required in connection therewith, and agrees to indemnify the General Partner for any withholding obligations that apply as a result of a failure to comply with Section 1446(f) in the event of a transfer of the Partner’s interest in the Partnership.
(b) Each Partner (including, without limitation, each Substituted Limited Partner as a condition to becoming a Substituted Limited Partner) represents, warrants and agrees that it has acquired and continues to hold its interest in the Partnership for its own account for investment purposes only and not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof, and not with a view toward selling or otherwise distributing such interest or any part thereof at any particular time or under any predetermined circumstances, in each case, in a transaction that would require registration under the Securities Act. Each Partner further represents and warrants that it is an accredited investor (within the meaning of Regulation D under the Securities Act)a sophisticated investor, able and accustomed to handling sophisticated financial and tax matters for itself, particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the funds that it has invested in the Partnership in what it understands to be a highly speculative and illiquid investment.
(c) The representations and warranties contained in Sections 3.04(a) and 3.04(b) hereof shall survive the execution and delivery of this Agreement by each Partner (and, in the case of an Additional Limited Partner or a Substituted Limited Partner, the admission of such Additional Limited Partner or Substituted Limited Partner as a Limited Partner in the Partnership) and the dissolution, liquidation and termination of the Partnership.
(d) Each Partner (including, without limitation, each Substituted Limited Partner as a condition to becoming a Substituted Limited Partner) hereby acknowledges that no representations as to potential profit, cash flows, funds from operations or yield, if any, in respect of the Partnership or the General Partner have been made by the Company, the A-1 SeriesGeneral Partner, any Partner or any employee or representative or Affiliate of the Company, the A-1 Series General Partner or any Partner, and that projections and any other information, including, without limitation, financial and descriptive information and documentation, that may have been in any manner submitted to such Partner shall not constitute any representation or warranty of any kind or nature, express or implied.
Appears in 1 contract
Samples: Limited Partnership Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
