REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR. Contributor and Parent make the following representations and warranties to Operating Partnership and Company, all of which (except as otherwise designated) are true and correct in all material respects on the Agreement Date and shall be true and correct in all material respects as of the date of the Closing: (a) Contributor is duly organized and validly existing under the laws of the state of Delaware and has been duly authorized by all necessary and appropriate action to enter into this Agreement and to consummate the transactions contemplated herein. This Agreement is a valid and binding obligation of Contributor, enforceable against Contributor in accordance with its terms, except insofar as such enforceability may be affected by bankruptcy, insolvency or similar laws affecting creditor’s rights generally and the availability of any particular equitable remedy. (b) Neither the execution nor the delivery of this Agreement nor the consummation of the transactions contemplated herein nor fulfillment of or compliance with the terms and conditions hereof (a) conflict with or will result in a breach of any of the terms, conditions or provisions of (i) the Governing Documents of Contributor or (ii) any agreement, order, judgment, decree, arbitration award, statute, law, rule, regulation or instrument to which Contributor is a party or by which it or its assets are bound, or (b) constitutes or will constitute (with or without due notice or lapse of time or both) a breach, violation or default (or give rise to any right of termination, cancellation or acceleration) under any of the foregoing, or result in the creation of any lien, charge or encumbrance pursuant to any of the foregoing. No consent or approval, authorization, order, regulation or qualification of any governmental entity or any third-party is required for the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by Contributor. (c) Contributor acknowledges that the Series Q Preferred Units have not been and will not be registered or qualified under the Securities Act or any state securities laws and are offered in reliance upon an exemption from registration under Section 4(2) of the Securities Act and similar state law exceptions. The Series Q Preferred Units to be received by Contributor hereunder and any Series Q Preferred Shares acquired in exchange therefor shall be held by Contributor for investment purposes only for its own account, and not with a view to or for sale in connection with any distribution of the Series Q Preferred Units or such Series Q Preferred Shares, and Contributor acknowledges that the Series Q Preferred Units and Series Q Preferred Shares cannot be sold or otherwise disposed of by the holders thereof unless they are subsequently registered under the Securities Act or sold or otherwise disposed of pursuant to an exemption therefrom; and the Series Q Preferred Units may not be sold, assigned or otherwise transferred except in compliance with the Partnership Agreement. Contributor hereby acknowledges receipt of a copy of the Partnership Agreement and represents that it has reviewed same and understands the provisions thereof which have a bearing on the representations made in this Paragraph 7A(c). (d) Contributor has no contract, understanding, agreement or arrangement with any Person or entity to sell, transfer or grant a participation to such Person or entity or any other Person or entity, with respect to any or all of the Series Q Preferred Units it will receive in accordance with the provisions hereof or any Series Q Preferred Shares to be acquired in exchange therefor. (e) Contributor is an “accredited investor” within the meaning of Regulation D under the Securities Act and has knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of receiving and owning the Series Q Preferred Units and Contributor is able to bear the economic risk of such ownership. (f) Contributor is not an employee benefit plan subject to ERISA or Section 4975 of the Code. (g) In making this investment, Contributor is relying upon the advice of its own personal, legal and tax advisors with respect to the tax and other aspects of an investment in Operating Partnership. (h) To the best of Contributor’s and Parent’s knowledge, applying the REIT stock ownership rules described below, if the Series Q Preferred Shares were issued to Contributor at the time of (and instead of) the issuance of the Series Q Preferred Units, and to no other Person, no “individual” would be treated as owning more than 9.9% of the outstanding shares of the Series Q Preferred Shares (except potentially two individuals who would each be treated as owning less than 15% of the outstanding shares of the Series Q Preferred Shares, provided that neither such individual would be treated as owning more than 9.9% of the combined number of outstanding shares of the Series Q Preferred Shares, the Series N Preferred Shares, the Series J Preferred Shares and the Series G Preferred Shares, also evaluating the Series N Preferred Units, the Series J Preferred Units and the Series G Preferred Units as if each such outstanding unit had been exchanged for a corresponding Series N Preferred Share, Series J Preferred Share or Series G Preferred Share, as applicable). For this purpose, ownership shall be determined under Section 856(h) of the Code and the applicable regulations, which apply Code Sections 542(a)(2) and 544, as modified.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR. Contributor hereby represents and Parent make warrants to the following Company and the Operating Partnership as set forth below in this Section 3.3, which representations and warranties to Operating Partnership and Company, all of which (except as otherwise designated) are true and correct in all material respects on the Agreement Date and shall be true and correct in all material respects as of the date hereof (or such other date specifically set forth below), except as disclosed in the Consent Solicitation, the Prospectus or the disclosure letter delivered from Contributor to the Company and the Operating Partnership simultaneously with the execution of this Agreement (the “Disclosure Letter”), as may be amended from time to time prior to the Closing Date with Consent of the ClosingCompany and the Operating Partnership:
(a) Organization; Authority.
(i) Contributor is a limited liability company, duly organized and validly existing and in good standing under the laws Laws of the state its jurisdiction of Delaware organization and has been duly authorized by all necessary requisite power and appropriate action authority to enter into this Agreement and to consummate the transactions each agreement or other document contemplated herein. This Agreement is a valid and binding obligation of Contributor, enforceable against Contributor in accordance with its terms, except insofar as such enforceability may be affected by bankruptcy, insolvency or similar laws affecting creditor’s rights generally and the availability of any particular equitable remedy.
(b) Neither the execution nor the delivery of this Agreement nor the consummation of the transactions contemplated herein nor fulfillment of or compliance with the terms and conditions hereof (a) conflict with or will result in a breach of any of the terms, conditions or provisions of (i) the Governing Documents of Contributor or (ii) any agreement, order, judgment, decree, arbitration award, statute, law, rule, regulation or instrument to which Contributor is a party or by which it or its assets are bound, or (b) constitutes or will constitute (with or without due notice or lapse of time or both) a breach, violation or default (or give rise to any right of termination, cancellation or acceleration) under any of the foregoing, or result in the creation of any lien, charge or encumbrance pursuant to any of the foregoing. No consent or approval, authorization, order, regulation or qualification of any governmental entity or any third-party is required for the execution and delivery of this Agreement and the consummation of to carry out the transactions contemplated hereby by and thereby, and to own, lease and/or operate its Property, as applicable, and its other assets, and to carry on its business as presently conducted. Contributor, to the extent required under applicable Laws, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its Property make such qualification necessary, other than such failures to be so qualified as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(cii) Contributor acknowledges that the Series Q Preferred Units have not been and will not be registered or qualified under the Securities Act or any state securities laws and are offered in reliance upon an exemption from registration under Section 4(23.3(a) of the Securities Act and similar state law exceptions. The Series Q Preferred Units to be received by Contributor hereunder and any Series Q Preferred Shares acquired in exchange therefor shall be held by Contributor for investment purposes only for its own account, and not with a view to or for sale in connection with any distribution Disclosure Letter sets forth as of the Series Q Preferred Units or such Series Q Preferred Shares, and Contributor acknowledges that the Series Q Preferred Units and Series Q Preferred Shares cannot be sold or otherwise disposed of by the holders thereof unless they are subsequently registered under the Securities Act or sold or otherwise disposed of pursuant to an exemption therefrom; and the Series Q Preferred Units may not be sold, assigned or otherwise transferred except in compliance with the Partnership Agreement. Contributor hereby acknowledges receipt of a copy of the Partnership Agreement and represents that it has reviewed same and understands the provisions thereof which have a bearing on the representations made in this Paragraph 7A(c).
(d) Contributor has no contract, understanding, agreement or arrangement with any Person or entity to sell, transfer or grant a participation to such Person or entity or any other Person or entity, date hereof with respect to any or all Contributor (A) each Subsidiary of Contributor, if applicable, (B) the ownership interest in each such Subsidiary and (C) if not wholly owned by Contributor, the identity and ownership interest of each of the Series Q Preferred Units it will receive in accordance with the provisions hereof other owners of such Subsidiary. Each real property owned or any Series Q Preferred Shares leased pursuant to be acquired in exchange therefor.
(e) a ground lease or operating lease by such Contributor is an “accredited investor” within the meaning set forth on Exhibit A. Each Subsidiary of Regulation D Contributor has been duly organized and is validly existing and in good standing under the Securities Act Laws of its jurisdiction of organization, and has knowledge all power and experience in financial authority to own, lease and/or operate its real properties and business matters such that it is capable of evaluating the merits and risks of receiving and owning the Series Q Preferred Units and Contributor is able to bear the economic risk of such ownership.
(f) Contributor is not an employee benefit plan subject to ERISA or Section 4975 of the Code.
(g) In making this investment, Contributor is relying upon the advice of its own personal, legal and tax advisors with respect to the tax and other aspects of an investment in Operating Partnership.
(h) To the best of Contributor’s and Parent’s knowledge, applying the REIT stock ownership rules described below, if the Series Q Preferred Shares were issued to Contributor at the time of (and instead of) the issuance of the Series Q Preferred Unitsassets, and to no carry on its business as presently conducted. Each Subsidiary of Contributor, to the extent required under applicable Laws, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its Property make such qualification necessary, other Personthan such failures to be so qualified as would not, no “individual” would individually or in the aggregate, reasonably be treated as owning more than 9.9% of the outstanding shares of the Series Q Preferred Shares (except potentially two individuals who would each be treated as owning less than 15% of the outstanding shares of the Series Q Preferred Shares, provided that neither such individual would be treated as owning more than 9.9% of the combined number of outstanding shares of the Series Q Preferred Shares, the Series N Preferred Shares, the Series J Preferred Shares and the Series G Preferred Shares, also evaluating the Series N Preferred Units, the Series J Preferred Units and the Series G Preferred Units as if each such outstanding unit had been exchanged for expected to have a corresponding Series N Preferred Share, Series J Preferred Share or Series G Preferred Share, as applicable). For this purpose, ownership shall be determined under Section 856(h) of the Code and the applicable regulations, which apply Code Sections 542(a)(2) and 544, as modifiedMaterial Adverse Effect.
Appears in 1 contract
Samples: Contribution Agreement (Empire State Realty OP, L.P.)
REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR. Contributor hereby represents and Parent make warrants to the Partnership that the following representations and warranties to Operating Partnership and Company, all of which (except as otherwise designated) are true and correct in all material respects on as of the Agreement Date date hereof, and shall be true and correct in all material respects at and as of the date of the ClosingClosing Date as though such representations and warranties were made at such time:
(a) Contributor is duly organized and validly existing an "accredited investor" (as such term is defined in Rule 501 of Regulation D under the laws Securities Act, the text of which is set forth on Schedule II hereto).
(b) Contributor is a citizen of the state United States and is at least 21 years of Delaware age, and the offer to purchase Common Units hereunder was made by the Partnership and accepted by Contributor within the United States.
(c) Contributor has full power and authority to execute and deliver this Agreement, to perform its obligations hereunder and such actions by Contributor have been duly authorized by all necessary and appropriate action to enter into this requisite action.
(d) This Agreement and all other documents required of Contributor to consummate complete the transactions contemplated herein. This Agreement is a acquisition of the Common Units hereunder have been duly executed and delivered by Contributor and constitute the legal, valid and binding obligation of Contributor, enforceable against Contributor in accordance with its their respective terms, except insofar as such enforceability may be affected by bankruptcy, insolvency or similar laws affecting creditor’s rights generally and the availability of any particular equitable remedy.
(be) Neither The Property is either separate property or community property over which Contributor has the execution nor right of control or of which Contributor has the delivery sole right of this Agreement nor the consummation management.
(f) The acquisition of the transactions contemplated Common Units by the Contributor is for Contributor's own account, is for investment purposes only, and is not being made with a view to, nor for offer or sale in connection with, the distribution of such Common Units and Contributor is not participating, does not have a participation in and does not contemplate any participation in, such a distribution or the underwriting of any such distribution.
(g) Contributor has no present intention of selling or otherwise disposing of the Common Units acquired hereunder in violation of (i) this Agreement, (ii) the Fourth Amended and Restated Partnership Agreement of the Partnership, dated February 18, 2003, as such may be amended from time to time subsequent to the date hereof (the "Partnership Agreement"), or (iii) the Securities Act or any other applicable Federal or state securities laws.
(h) Contributor is aware that neither the Securities and Exchange Commission (the "SEC") nor other Federal or state securities commission or governmental authority has approved or disapproved of the Common Units, made any finding or determination as to the fairness of an investment in the Partnership, nor made any recommendation or endorsement with respect thereto, and any representation to the contrary is a criminal offense.
(i) Contributor confirms that it understands and has fully considered and reviewed for purposes of the purchase of Common Units hereunder all documents filed with the SEC by the Partnership and its affiliates, all of which are publicly available via EDGAR (all such documents are collectively referred to herein nor fulfillment as the "Xxxxic Filings").
(j) Contributor is able to bear the economic risk of the acquisition of the Common Units hereunder and is able to bear its investment in the Partnership for an indefinite period of time.
(k) Contributor understands that the Common Units purchased hereunder have not been registered under the Securities Act or the securities laws of any state and, therefore, cannot be sold, transferred or otherwise disposed of unless:
(i) such Common Units are subsequently registered under the Securities Act and any applicable securities laws of any state or exemptions from registration thereunder are available; and
(ii) such sale, transfer or disposal is in compliance with the terms of the Partnership Agreement and this Agreement; Contributor further understands that only the Partnership can take action to register the Common Units being sold hereunder and that the Partnership is under no obligation, and has no present plans, to do so.
(l) Contributor understands that the Common Units purchased hereunder may be required to be held for an indeterminate period of time and that the sale or other transfer of such Common Units by Contributor in reliance on Rule 144 under the Securities Act, if available to Contributor, may be made only in limited amounts in accordance with the terms and conditions hereof of Rule 144.
(am) conflict with In addition to the other provisions of this Agreement and the Partnership Agreement, Contributor agrees that in no event will Contributor make a sale, transfer or will result in a breach other disposition of any of the terms, conditions or provisions of Common Units purchased hereunder unless and until:
(i) Contributor has notified the Governing Documents Partnership of Contributor or its proposed disposition and has furnished the Partnership with a statement of the circumstances surrounding the proposed disposition; and
(ii) Contributor has furnished the Partnership with an opinion of counsel satisfactory to the Partnership in its sole discretion to the effect (A) that such disposition will not require registration or qualification of such Common Units under federal or state securities laws or (B) that appropriate action necessary for compliance with such federal or state securities laws has been taken; provided, however, the Partnership may expressly waive the requirements under clauses (i) and (ii) above.
(n) all information that Contributor has supplied to the Partnership or its respective representatives or agents, including the information included in this Agreement, is true and complete as of the date hereof, and unless otherwise made known to the Partnership or its representatives in writing, true and complete as of the Closing Date, with the same force and effect as if executed, made, or supplied, at the Closing Date.
(o) Contributor, or its principals, as the case may be, acknowledges that they have such knowledge and experience in financial, investing and business matters as to be capable of evaluating the risks and merits of purchasing Common Units pursuant to this Agreement and protecting their interests in connection with such purchase of the Common Units hereunder and investment in the Partnership.
(p) Contributor was not contacted by the Partnership or its representatives for the purpose of purchasing the Common Units hereunder through any agreementadvertisement, orderarticle, judgmentmass mailing, decreenotice or any other communication published in any newspaper, arbitration awardmagazine, statuteor similar media or broadcast over television or radio, or any seminar or meeting whose attendees were invited by any general advertising.
(q) Contributor confirms that, in making the decision to purchase Common Units hereunder, Contributor has relied solely upon independent investigations made by Contributor or representatives of the Contributor, including their own professional tax and other advisers and that Contributor and such representatives have had access to and an opportunity to inspect all relevant information relating to the Partnership (including the Public Filings) sufficient to enable Contributor to evaluate the merits and risks of their purchase of Common Units hereunder.
(r) Contributor has had the opportunity to ask questions of the representatives of the Partnership, including representatives of its general partner, and has received satisfactory answers respecting, and has obtained such additional information as Contributor has desired regarding the business, financial condition and other affairs of the Partnership.
(s) the completion, execution and delivery by Contributor of this Agreement and all other documents required to consummate the transactions contemplated hereunder and the performance by Contributor of its obligations hereunder do not, and will not, violate any provision of law, ruleany order of any court or other agency of government, regulation and do not and will not result in a material breach of or instrument to which Contributor is a party or by which it or its assets are bound, or (b) constitutes or will constitute (with or without due notice or lapse of time or both) a breach, violation or material default (or give rise to any right of termination, cancellation or acceleration) under any provision of the foregoingany indenture, agreement or other instrument to which Contributor, or result in the creation of any lien, charge or encumbrance pursuant to any of his properties or assets, including the foregoing. No consent or approvalProperty, authorization, order, regulation or qualification of any governmental entity or any third-party is required for the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by Contributorbound.
(ct) Contributor acknowledges that is not acquiring the Series Q Preferred Common Units have not been and will not be registered or qualified under the Securities Act or any state securities laws and are offered in reliance upon an exemption from registration under Section 4(2) of the Securities Act and similar state law exceptions. The Series Q Preferred Units to be received by Contributor hereunder and any Series Q Preferred Shares acquired in exchange therefor shall be held by Contributor for investment purposes only for its own account, and not with a view to realizing any benefits under the United States federal income tax laws with respect to Contributor's share of any losses or expenses of the Partnership, and no representations have been made to Contributor that any such benefits will be available as result of Contributor's acquisition, ownership or disposition of such Common Units.
(u) Contributor has not borrowed, and shall not borrow, as the case may be, any portion of the funds necessary to purchase Common Units hereunder, either directly or indirectly, from the Partnership, its general partner or any affiliate of the foregoing.
(v) for sale United States tax purposes:
(i) Contributor certifies that its name, taxpayer identification or social security number and address set forth on Schedule I are correct;
(ii) Contributor certifies that it is not a non-resident alien individual, foreign corporation, foreign partnership, foreign trust or foreign estate (as defined in the Internal Revenue Code of 1986, as amended) and that it will notify the Partnership within sixty (60) days of a change to foreign status and its new country of residence; and
(iii) Contributor agrees to execute properly and provide to the Partnership in a timely manner any tax documentation that may reasonably be required by the Partnership in connection with its ownership on Common Units.
(w) All contractors, subcontractors, suppliers, architects, engineers, and others who have performed services or labor or have supplied materials in connection with Contributor's acquisition, development, ownership, or management of the Property have been paid in full and all liens arising therefrom (or claims which with the passage of time or the giving of notice, or both, could mature into liens) have been satisfied and released.
(x) The list of service contracts to be delivered to the Partnership pursuant to this Agreement will be true, correct, and complete as of the date of its delivery. Neither Contributor nor, to Contributor's knowledge, any other party is in default under any service contract.
(y) The operating statements to be delivered to the Partnership pursuant to this Agreement will show all items of income and expense (operating and capital) incurred in connection with Contributor's ownership, operation, and management of the Property for the periods indicated and will be true, correct, and complete in all material respects.
(z) All information set forth in any rent roll delivered to the Partnership is or shall be true, correct, and complete in all material respects as of its date. There are no leasing or other commissions due, nor will any become due, in connection with any distribution lease, and no understanding or agreement with any party exists as to payment of any leasing commissions or fees regarding future leases or as to the Series Q Preferred Units procuring of tenants. To Contributor's knowledge, no tenants have asserted any defenses or such Series Q Preferred Sharesoffsets to rent accruing after the date of Closing, no material default exists on the part of any tenant, and Contributor acknowledges that has not received any notice of any default or breach on the Series Q Preferred Units and Series Q Preferred Shares cannot be sold or otherwise disposed of by the holders thereof unless they are subsequently registered under the Securities Act or sold or otherwise disposed of pursuant to an exemption therefrom; and the Series Q Preferred Units may not be sold, assigned or otherwise transferred except in compliance with the Partnership Agreement. Contributor hereby acknowledges receipt of a copy part of the Partnership Agreement and represents that it has reviewed same and understands the provisions thereof which have a bearing on the representations made in this Paragraph 7A(c)landlord under any lease.
(daa) The summary of service contracts to be delivered to the Partnership pursuant to this Agreement will be true, correct, and complete as of the date of its delivery. To Contributor's knowledge, neither Contributor has no contract, understanding, agreement or arrangement with any Person or entity to sell, transfer or grant a participation to such Person or entity or nor any other Person or entity, with respect to party is in default under any or all of the Series Q Preferred Units it will receive in accordance with the provisions hereof or any Series Q Preferred Shares to be acquired in exchange thereforservice contract.
(e) Contributor is an “accredited investor” within the meaning of Regulation D under the Securities Act and has knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of receiving and owning the Series Q Preferred Units and Contributor is able to bear the economic risk of such ownership.
(f) Contributor is not an employee benefit plan subject to ERISA or Section 4975 of the Code.
(g) In making this investment, Contributor is relying upon the advice of its own personal, legal and tax advisors with respect to the tax and other aspects of an investment in Operating Partnership.
(h) To the best of Contributor’s and Parent’s knowledge, applying the REIT stock ownership rules described below, if the Series Q Preferred Shares were issued to Contributor at the time of (and instead of) the issuance of the Series Q Preferred Units, and to no other Person, no “individual” would be treated as owning more than 9.9% of the outstanding shares of the Series Q Preferred Shares (except potentially two individuals who would each be treated as owning less than 15% of the outstanding shares of the Series Q Preferred Shares, provided that neither such individual would be treated as owning more than 9.9% of the combined number of outstanding shares of the Series Q Preferred Shares, the Series N Preferred Shares, the Series J Preferred Shares and the Series G Preferred Shares, also evaluating the Series N Preferred Units, the Series J Preferred Units and the Series G Preferred Units as if each such outstanding unit had been exchanged for a corresponding Series N Preferred Share, Series J Preferred Share or Series G Preferred Share, as applicable). For this purpose, ownership shall be determined under Section 856(h) of the Code and the applicable regulations, which apply Code Sections 542(a)(2) and 544, as modified.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR. Contributor hereby represents and Parent make warrants to the Partnership that the following representations and warranties to Operating Partnership and Company, all of which (except as otherwise designated) are true and correct in all material respects on as of the Agreement Date date hereof, and shall be true and correct in all material respects at and as of the date of the ClosingClosing Date as though such representations and warranties were made at such time:
(a) Contributor is duly organized and validly existing an "accredited investor" (as such term is defined in Rule 501 of Regulation D under the laws Securities Act, the text of which is set forth on Schedule II hereto).
(b) Contributor is a citizen of the state United States and is at least 21 years of Delaware age, and the offer to purchase Common Units hereunder was made by the Partnership and accepted by Contributor within the United States.
(c) Contributor has full power and authority to execute and deliver this Agreement, to perform its obligations hereunder and such actions by Contributor have been duly authorized by all necessary and appropriate action to enter into this requisite action.
(d) This Agreement and all other documents required of Contributor to consummate complete the transactions contemplated herein. This Agreement is a acquisition of the Common Units hereunder have been duly executed and delivered by Contributor and constitute the legal, valid and binding obligation of Contributor, enforceable against Contributor in accordance with its their respective terms, except insofar as such enforceability may be affected by bankruptcy, insolvency or similar laws affecting creditor’s rights generally and the availability of any particular equitable remedy.
(be) Neither The Property is either separate property or community property over which Contributor has the execution nor right of control or of which Contributor has the delivery sole right of this Agreement nor the consummation management.
(f) The acquisition of the transactions contemplated Common Units by the Contributor is for Contributor's own account, is for investment purposes only, and is not being made with a view to, nor for offer or sale in connection with, the distribution of such Common Units and Contributor is not participating, does not have a participation in and does not contemplate any participation in, such a distribution or the underwriting of any such distribution.
(g) Contributor has no present intention of selling or otherwise disposing of the Common Units acquired hereunder in violation of (i) this Agreement, (ii) the Fourth Amended and Restated Partnership Agreement of the Partnership, dated February 18, 2003, as such may be amended from time to time subsequent to the date hereof (the "Partnership Agreement"), or (iii) the Securities Act or any other applicable Federal or state securities laws.
(h) Contributor is aware that neither the Securities and Exchange Commission (the "SEC") nor other Federal or state securities commission or governmental authority has approved or disapproved of the Common Units, made any finding or determination as to the fairness of an investment in the Partnership, nor made any recommendation or endorsement with respect thereto, and any representation to the contrary is a criminal offense.
(i) Contributor confirms that it understands and has fully considered and reviewed for purposes of the purchase of Common Units hereunder all documents filed with the SEC by the Partnership and its affiliates, all of which are publicly available via EDGAR (all such documents are collectively referred to herein nor fulfillment xx xxe "Public Filings").
(j) Contributor is able to bear the economic risk of the acquisition of the Common Units hereunder and is able to bear its investment in the Partnership for an indefinite period of time.
(k) Contributor understands that the Common Units purchased hereunder have not been registered under the Securities Act or the securities laws of any state and, therefore, cannot be sold, transferred or otherwise disposed of unless:
(i) such Common Units are subsequently registered under the Securities Act and any applicable securities laws of any state or exemptions from registration thereunder are available; and
(ii) such sale, transfer or disposal is in compliance with the terms of the Partnership Agreement and this Agreement; Contributor further understands that only the Partnership can take action to register the Common Units being sold hereunder and that the Partnership is under no obligation, and has no present plans, to do so.
(l) Contributor understands that the Common Units purchased hereunder may be required to be held for an indeterminate period of time and that the sale or other transfer of such Common Units by Contributor in reliance on Rule 144 under the Securities Act, if available to Contributor, may be made only in limited amounts in accordance with the terms and conditions hereof of Rule 144.
(am) conflict with In addition to the other provisions of this Agreement and the Partnership Agreement, Contributor agrees that in no event will Contributor make a sale, transfer or will result in a breach other disposition of any of the terms, conditions or provisions of Common Units purchased hereunder unless and until:
(i) Contributor has notified the Governing Documents Partnership of Contributor or its proposed disposition and has furnished the Partnership with a statement of the circumstances surrounding the proposed disposition; and
(ii) Contributor has furnished the Partnership with an opinion of counsel satisfactory to the Partnership in its sole discretion to the effect (A) that such disposition will not require registration or qualification of such Common Units under federal or state securities laws or (B) that appropriate action necessary for compliance with such federal or state securities laws has been taken; provided, however, the Partnership may expressly waive the requirements under clauses (i) and (ii) above.
(n) all information that Contributor has supplied to the Partnership or its respective representatives or agents, including the information included in this Agreement, is true and complete as of the date hereof, and unless otherwise made known to the Partnership or its representatives in writing, true and complete as of the Closing Date, with the same force and effect as if executed, made, or supplied, at the Closing Date.
(o) Contributor, or its principals, as the case may be, acknowledges that they have such knowledge and experience in financial, investing and business matters as to be capable of evaluating the risks and merits of purchasing Common Units pursuant to this Agreement and protecting their interests in connection with such purchase of the Common Units hereunder and investment in the Partnership.
(p) Contributor was not contacted by the Partnership or its representatives for the purpose of purchasing the Common Units hereunder through any agreementadvertisement, orderarticle, judgmentmass mailing, decreenotice or any other communication published in any newspaper, arbitration awardmagazine, statuteor similar media or broadcast over television or radio, or any seminar or meeting whose attendees were invited by any general advertising.
(q) Contributor confirms that, in making the decision to purchase Common Units hereunder, Contributor has relied solely upon independent investigations made by Contributor or representatives of the Contributor, including their own professional tax and other advisers and that Contributor and such representatives have had access to and an opportunity to inspect all relevant information relating to the Partnership (including the Public Filings) sufficient to enable Contributor to evaluate the merits and risks of their purchase of Common Units hereunder.
(r) Contributor has had the opportunity to ask questions of the representatives of the Partnership, including representatives of its general partner, and has received satisfactory answers respecting, and has obtained such additional information as Contributor has desired regarding the business, financial condition and other affairs of the Partnership.
(s) the completion, execution and delivery by Contributor of this Agreement and all other documents required to consummate the transactions contemplated hereunder and the performance by Contributor of its obligations hereunder do not, and will not, violate any provision of law, ruleany order of any court or other agency of government, regulation and do not and will not result in a material breach of or instrument to which Contributor is a party or by which it or its assets are bound, or (b) constitutes or will constitute (with or without due notice or lapse of time or both) a breach, violation or material default (or give rise to any right of termination, cancellation or acceleration) under any provision of the foregoingany indenture, agreement or other instrument to which Contributor, or result in the creation of any lien, charge or encumbrance pursuant to any of his properties or assets, including the foregoing. No consent or approvalProperty, authorization, order, regulation or qualification of any governmental entity or any third-party is required for the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by Contributorbound.
(ct) Contributor acknowledges that is not acquiring the Series Q Preferred Common Units have not been and will not be registered or qualified under the Securities Act or any state securities laws and are offered in reliance upon an exemption from registration under Section 4(2) of the Securities Act and similar state law exceptions. The Series Q Preferred Units to be received by Contributor hereunder and any Series Q Preferred Shares acquired in exchange therefor shall be held by Contributor for investment purposes only for its own account, and not with a view to realizing any benefits under the United States federal income tax laws with respect to Contributor's share of any losses or expenses of the Partnership, and no representations have been made to Contributor that any such benefits will be available as result of Contributor's acquisition, ownership or disposition of such Common Units.
(u) Contributor has not borrowed, and shall not borrow, as the case may be, any portion of the funds necessary to purchase Common Units hereunder, either directly or indirectly, from the Partnership, its general partner or any affiliate of the foregoing.
(v) for sale United States tax purposes:
(i) Contributor certifies that its name, taxpayer identification or social security number and address set forth on Schedule I are correct;
(ii) Contributor certifies that it is not a non-resident alien individual, foreign corporation, foreign partnership, foreign trust or foreign estate (as defined in the Internal Revenue Code of 1986, as amended) and that it will notify the Partnership within sixty (60) days of a change to foreign status and its new country of residence; and
(iii) Contributor agrees to execute properly and provide to the Partnership in a timely manner any tax documentation that may reasonably be required by the Partnership in connection with its ownership on Common Units.
(w) All contractors, subcontractors, suppliers, architects, engineers, and others who have performed services or labor or have supplied materials in connection with Contributor's acquisition, development, ownership, or management of the Property have been paid in full and all liens arising therefrom (or claims which with the passage of time or the giving of notice, or both, could mature into liens) have been satisfied and released.
(x) The list of service contracts to be delivered to the Partnership pursuant to this Agreement will be true, correct, and complete as of the date of its delivery. Neither Contributor nor, to Contributor's knowledge, any other party is in default under any service contract.
(y) The operating statements to be delivered to the Partnership pursuant to this Agreement will show all items of income and expense (operating and capital) incurred in connection with Contributor's ownership, operation, and management of the Property for the periods indicated and will be true, correct, and complete in all material respects.
(z) All information set forth in any rent roll delivered to the Partnership is or shall be true, correct, and complete in all material respects as of its date. There are no leasing or other commissions due, nor will any become due, in connection with any distribution lease, and no understanding or agreement with any party exists as to payment of any leasing commissions or fees regarding future leases or as to the Series Q Preferred Units procuring of tenants. To Contributor's knowledge, no tenants have asserted any defenses or such Series Q Preferred Sharesoffsets to rent accruing after the date of Closing, no material default exists on the part of any tenant, and Contributor acknowledges that has not received any notice of any default or breach on the Series Q Preferred Units and Series Q Preferred Shares cannot be sold or otherwise disposed of by the holders thereof unless they are subsequently registered under the Securities Act or sold or otherwise disposed of pursuant to an exemption therefrom; and the Series Q Preferred Units may not be sold, assigned or otherwise transferred except in compliance with the Partnership Agreement. Contributor hereby acknowledges receipt of a copy part of the Partnership Agreement and represents that it has reviewed same and understands the provisions thereof which have a bearing on the representations made in this Paragraph 7A(c)landlord under any lease.
(daa) The summary of service contracts to be delivered to the Partnership pursuant to this Agreement will be true, correct, and complete as of the date of its delivery. To Contributor's knowledge, neither Contributor has no contract, understanding, agreement or arrangement with any Person or entity to sell, transfer or grant a participation to such Person or entity or nor any other Person or entity, with respect to party is in default under any or all of the Series Q Preferred Units it will receive in accordance with the provisions hereof or any Series Q Preferred Shares to be acquired in exchange thereforservice contract.
(e) Contributor is an “accredited investor” within the meaning of Regulation D under the Securities Act and has knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of receiving and owning the Series Q Preferred Units and Contributor is able to bear the economic risk of such ownership.
(f) Contributor is not an employee benefit plan subject to ERISA or Section 4975 of the Code.
(g) In making this investment, Contributor is relying upon the advice of its own personal, legal and tax advisors with respect to the tax and other aspects of an investment in Operating Partnership.
(h) To the best of Contributor’s and Parent’s knowledge, applying the REIT stock ownership rules described below, if the Series Q Preferred Shares were issued to Contributor at the time of (and instead of) the issuance of the Series Q Preferred Units, and to no other Person, no “individual” would be treated as owning more than 9.9% of the outstanding shares of the Series Q Preferred Shares (except potentially two individuals who would each be treated as owning less than 15% of the outstanding shares of the Series Q Preferred Shares, provided that neither such individual would be treated as owning more than 9.9% of the combined number of outstanding shares of the Series Q Preferred Shares, the Series N Preferred Shares, the Series J Preferred Shares and the Series G Preferred Shares, also evaluating the Series N Preferred Units, the Series J Preferred Units and the Series G Preferred Units as if each such outstanding unit had been exchanged for a corresponding Series N Preferred Share, Series J Preferred Share or Series G Preferred Share, as applicable). For this purpose, ownership shall be determined under Section 856(h) of the Code and the applicable regulations, which apply Code Sections 542(a)(2) and 544, as modified.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR. 5.1 In order to induce CRLP and Cali to perform as required hereunder, Contributor hereby warrants and Parent make represents the following representations and warranties to Operating Partnership and Company, all of which (except as otherwise designated) are true and correct in all material respects on the Agreement Date and shall be true and correct in all material respects as of the date of the Closingfollowing:
(a) Contributor is a duly organized and validly existing limited liability company organized under the laws of the state State of Delaware and has been duly authorized by to transact business in the State of New Jersey, has all necessary requisite power and appropriate action authority to enter into execute and deliver this Agreement and all other documents and instruments to consummate be executed and delivered by it hereunder, and to perform its obligations hereunder and under such other documents and instruments in order to sell the transactions Property in accordance with the terms and conditions hereof. All necessary actions of the members of Contributor to confer such power and authority upon the persons executing this Agreement and all documents which are contemplated herein. by this Agreement on its behalf have been taken.
(b) This Agreement is a Agreement, when duly executed and delivered, will be the legal, valid and binding obligation of Contributor, enforceable against Contributor in accordance with the terms of this Agreement. The performance by Contributor of its terms, except insofar as such enforceability may be affected by bankruptcy, insolvency or similar laws affecting creditor’s rights generally duties and obligations under this Agreement and the availability of any particular equitable remedy.
(b) Neither the execution nor the delivery of this Agreement nor the consummation of the transactions contemplated herein nor fulfillment of documents and instruments to be executed and delivered by it hereunder will not conflict with, or compliance with the terms and conditions hereof (a) conflict with or will result in a breach of, or default under, any provision of any of the terms, conditions or provisions of (i) the Governing Documents organizational documents of Contributor or (ii) any agreementagreements, orderinstruments, judgmentdecrees, decreejudgments, arbitration awardinjunctions, statuteorders, lawwrits, rulelaws, regulation rules or instrument regulations, or any determination or award of any court or arbitrator, to which Contributor is a party or by which it or its assets are or may be bound.
(c) Annexed hereto as Schedule 5.1(c-i) a true, complete and correct schedule of all of the Leases. The Leases are valid and bona fide obligations of the landlord and Contributor has no knowledge that the Leases are not in full force and effect. Contributor has not received notice from any tenant claiming that it's lease is not its valid and bona fide obligation. No condition exists which, solely with the passage of time or the giving of notice or both, will become a material default under the Leases. The Leases constitute all of the leases, tenancies or occupancies affecting the Real Property on the date hereof, excluding any subleases, occupancies or tenancies created or allowed by any Tenants without Contributor's knowledge . All Tenants have commenced occupancy; there are no agreements which confer upon any Tenant or any other person or entity any rights with respect to Property. Except as provided in Schedule 5.1(c-ii), no Tenant is entitled now or in the future to any offset to its rent, nor is any Tenant currently asserting a concession, rebate, allowance or free rent for any period.
(d) Annexed hereto as Schedule 5.1(d) (the "Rent Roll") is a true, complete and correct listing of the Leases, together with the following information: (i) the name of each Tenant; (ii) the fixed rent actually being collected; (iii) the expiration date or status of each Lease (including all rights or options to renew); (iv) the Security Deposit, if any; (v) whether there is any guaranty of a Tenant's obligations from a third party, and if so the nature of said guaranty; (vi) arrangements under which any Tenant is occupying space on the date hereof or will, in the future, occupy such space; (vii) any written notices given by any Tenant of an intention to vacate space in the future; (viii) the base year(s) and base year amounts for all items of rent or additional rent billed to each Tenant on that basis; and (ix) any arrearages of any Tenant.
(e) Except as set forth on Schedule 5.1(e), Contributor has performed all of the material obligations and observed all of the covenants required of the landlord under the terms of the Leases. All work, alterations, improvements or installations required to be made by Contributor for or on behalf of all Tenants under the Leases prior to Closing have been or will, prior to Closing, be in all respects carried out, performed and complied with, and there is no agreement by or on behalf of Contributor with any Tenant for the performance of any work to be done after Closing except as set forth on Schedule 5.1(e). Contributor has no knowledge that any work has been performed at the Real Property which would require an amendment to the certificate of occupancy for which an amendment has not been obtained. Contributor has no knowledge that any and all work performed at the Real Property to the date hereof and to the Closing Date has not been or will not be in accordance with the rules, laws and regulations of all applicable authorities. All bills and claims for labor performed and materials furnished to or for the benefit of the Property by or on behalf of Contributor will be paid in full by Contributor.
(f) There are no Service Contracts (except for those set forth on Schedule 1.1(f)), equipment leases, union contracts, employment agreements or other agreements affecting the Property or the operation thereof. True, accurate and complete copies of the Service Contracts have been initialed by the parties.
(g) Contributor has provided CRLP with all reports including, without limitation, the Environmental Documents (as hereinafter defined) in Contributor's possession or under its control relating to the physical condition of the Real Property, and all Books and Records necessary for CRLP to conduct its due diligence of the Property.
(h) Contributor has not received written notice of: (i) any suits, investigations or judgments relating to any violations (including, without limitation, Environmental Laws (as hereinafter defined)) of any laws, ordinances or regulations affecting the Real Property, or (bii) constitutes any violations or will constitute (with or without due notice or lapse of time or both) a breach, violation or default (or conditions that may give rise to thereto, from any right agency, board, bureau, commission, department, office or body of terminationany municipal, cancellation county, state or acceleration) under federal governmental unit, or any subdivision thereof, having, asserting or acquiring jurisdiction over all or any part of the foregoingReal Property or the management, operation, use or improvement thereof (collectively, the "Governmental Authorities") and there are no outstanding orders, judgments, injunctions, decrees, directives or writ of any Governmental Authorities against or involving Contributor or the Real Property.
(i) Annexed hereto as Schedule 5.1(i) is a schedule of all leasing commission obligations which Contributor may have liability for affecting the Property. The respective obligations of Contributor and CRLP with respect to said commissions are set forth in Section 8.
(j) Contributor has not made a general assignment for the benefit of creditors, filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Contributor's creditors, suffered the appointment of a receiver to take possession of all, or result substantially all, of such Contributor's assets, suffered the attachment or other judicial seizure of all, or substantially all, of such Contributor's assets, admitted in writing its inability to pay its debts as they come due or made an offer of settlement, extension or composition to its creditors generally.
(k) Contributor has paid all Taxes (as hereinafter defined) due and payable as of the creation date of this Agreement, and Contributor shall pay all Taxes due and payable prior to Closing. Contributor has filed all returns and reports required to be filed for which claim could be made against the Property. "Taxes" means all federal, state, county, local, foreign and other taxes of any lienkind whatsoever (including, charge without limitation, income, profits, premium, estimated, excise, sales, use, occupancy, gross receipts, franchise, ad valorem, severance, capital levy, production, transfer, license, stamp, environmental, withholding, employment, unemployment compensation, payroll related and property taxes, import duties and other governmental charges or encumbrance pursuant assessments), whether or not measured in whole or in part by net income, and including deficiencies, interest, additions to tax or interest, and penalties with respect thereto, and including expenses associated with contesting any proposed adjustment related to any of the foregoing. No consent or approval, authorization, order, regulation or qualification of any governmental entity or any third-party is required for the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by Contributor.
(c) Contributor acknowledges that the Series Q Preferred Units have not been and will not be registered or qualified under the Securities Act or any state securities laws and are offered in reliance upon an exemption from registration under Section 4(2) of the Securities Act and similar state law exceptions. The Series Q Preferred Units to be received by Contributor hereunder and any Series Q Preferred Shares acquired in exchange therefor shall be held by Contributor for investment purposes only for its own account, and not with a view to or for sale in connection with any distribution of the Series Q Preferred Units or such Series Q Preferred Shares, and Contributor acknowledges that the Series Q Preferred Units and Series Q Preferred Shares cannot be sold or otherwise disposed of by the holders thereof unless they are subsequently registered under the Securities Act or sold or otherwise disposed of pursuant to an exemption therefrom; and the Series Q Preferred Units may not be sold, assigned or otherwise transferred except in compliance with the Partnership Agreement. Contributor hereby acknowledges receipt of a copy of the Partnership Agreement and represents that it has reviewed same and understands the provisions thereof which have a bearing on the representations made in this Paragraph 7A(c).
(d) Contributor has no contract, understanding, agreement or arrangement with any Person or entity to sell, transfer or grant a participation to such Person or entity or any other Person or entity, with respect to any or all of the Series Q Preferred Units it will receive in accordance with the provisions hereof or any Series Q Preferred Shares to be acquired in exchange therefor.
(e) Contributor is an “accredited investor” within the meaning of Regulation D under the Securities Act and has knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of receiving and owning the Series Q Preferred Units and Contributor is able to bear the economic risk of such ownership.
(f) Contributor is not an employee benefit plan subject to ERISA or Section 4975 of the Code.
(g) In making this investment, Contributor is relying upon the advice of its own personal, legal and tax advisors with respect to the tax and other aspects of an investment in Operating Partnership.
(h) To the best of Contributor’s and Parent’s knowledge, applying the REIT stock ownership rules described below, if the Series Q Preferred Shares were issued to Contributor at the time of (and instead of) the issuance of the Series Q Preferred Units, and to no other Person, no “individual” would be treated as owning more than 9.9% of the outstanding shares of the Series Q Preferred Shares (except potentially two individuals who would each be treated as owning less than 15% of the outstanding shares of the Series Q Preferred Shares, provided that neither such individual would be treated as owning more than 9.9% of the combined number of outstanding shares of the Series Q Preferred Shares, the Series N Preferred Shares, the Series J Preferred Shares and the Series G Preferred Shares, also evaluating the Series N Preferred Units, the Series J Preferred Units and the Series G Preferred Units as if each such outstanding unit had been exchanged for a corresponding Series N Preferred Share, Series J Preferred Share or Series G Preferred Share, as applicable). For this purpose, ownership shall be determined under Section 856(h) of the Code and the applicable regulations, which apply Code Sections 542(a)(2) and 544, as modified.
Appears in 1 contract
Samples: Contribution and Exchange Agreement (Mack Cali Realty Corp)
REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR. Contributor and Parent make makes the --------------------------------------------- following representations and warranties to Operating Partnership and Company, all of which (except as otherwise designated) are true and correct in all material respects on the Agreement Date and shall be true and correct in all material respects as of the date of the Closing:
(a) Contributor is duly organized and validly existing under the laws of the state of Delaware its organization and has been duly authorized by all necessary and appropriate action to enter into this Agreement and to consummate the transactions contemplated hereinhereby, and the Manager of Contributor executing this Agreement on behalf of Contributor has been duly authorized by all necessary and appropriate action on behalf of Contributor. This Agreement is a valid and binding obligation of Contributor, enforceable against Contributor in accordance with its terms, except insofar as such enforceability may be affected by bankruptcy, insolvency or similar laws affecting creditor’s 's rights generally and the availability of any particular equitable remedy.
(b) Neither the execution nor the delivery of this Agreement nor the consummation of the transactions contemplated herein hereby nor fulfillment of or compliance with the terms and conditions hereof (a) conflict with or will result in a breach of any of the terms, conditions or provisions of (i) the Governing Documents of Contributor or its Manager or (ii) any agreement, order, judgmentjudgement, decree, arbitration award, statute, law, rule, regulation or instrument to which Contributor is a party or by which it or its assets are bound, or (b) constitutes or will constitute (with or without due notice or lapse of time or both) a breach, violation or default (or give rise to any right of termination, cancellation or acceleration) under any of the foregoing, or result in the creation of any lien, charge or encumbrance pursuant to any of the foregoing. No consent or approval, authorization, order, regulation or qualification of any governmental entity or any third-party other person is required for the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by Contributor.
(c) Contributor acknowledges that the Series Q Preferred Preference Units have not been and will not be registered or qualified under the Securities Act or any state securities laws and are offered in reliance upon an exemption from registration under Section 4(2) Regulation D of the Securities Act and similar state law exceptions. The Series Q Preferred Preference Units to be received by Contributor hereunder and any Series Q Preferred Shares acquired in exchange therefor shall be held by Contributor for investment purposes only for its own account, and not with a view to or for sale in connection with any distribution of the Series Q Preferred Preference Units or such Series Q Preferred Shares, and Contributor acknowledges that the Series Q Preferred Preference Units and Series Q Preferred Shares cannot be sold or otherwise disposed of by the holders thereof unless they are subsequently registered under the Securities Act or sold or otherwise disposed of pursuant to an a exemption therefrom; and the Series Q Preferred Preference Units may not be sold, assigned or otherwise transferred except in compliance with the Partnership AgreementAgreement of Limited Partnership. Contributor hereby acknowledges receipt of a copy of the Agreement of Limited Partnership Agreement and represents that it has reviewed same and understands the provisions thereof which have a bearing on the representations made in this Paragraph 7A(cPARAGRAPH 7(c).
(d) Contributor has no contract, understanding, agreement or arrangement with any Person person or entity to sell, transfer or grant a participation to such Person person or entity or any other Person person or entity, with respect to any or all of the Series Q Preferred Preference Units it will receive in accordance with the provisions hereof or any Series Q Preferred Shares to be acquired in exchange therefor.
(e) Contributor is an “"accredited investor” " within the meaning of Regulation D under the Securities Act and has knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of receiving and owning the Series Q Preferred Preference Units and Contributor is able to bear the economic risk of such ownership.
(f) No part of the funds to be used by Contributor to purchase the Preference Units constitutes "plan assets", as defined in Department of Labor Regulation Section 2510.3-101 (29 C.F.R. 2510.3-101), of any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or individual retirement account or plan which is subject to Section 4975 of the Code (collectively, a "Benefit Plan") or of any account or entity whose underlying assets constitute "plan assets" of a Benefit Plan by reason of the Benefit Plan's investment in the account or entity. Contributor is not an employee benefit plan subject to ERISA or Section 4975 of the Code.
(g) In making this investment, Contributor is relying upon the advice of its own personal, legal and tax advisors with respect to the tax and other aspects of an investment in Operating Partnership.
(h) To the best of Contributor’s and Parent’s knowledge, applying the REIT stock ownership rules described below, if the Series Q Preferred Shares were issued There has been made available to Contributor at and its respective advisors the time of (opportunity to ask questions of, and instead of) receive answers from, Operating Partnership and Company concerning the issuance terms and conditions of the Series Q Preferred investment in the Preference Units, and to no other Personobtain Company's Registration Statement filed with the Securities and Exchange Commission on Form S-11, no “individual” would be treated as owning more than 9.9% the Agreement of Limited Partnership, and any additional information, to the extent that any of them possess such information, or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of the outstanding shares information given to it, or to otherwise make an informed investment decision, and that Contributor has had an opportunity to consult with counsel and other advisers about the investment in the Preference Units, and that all material documents, records and books pertaining to such investment have, on request, been made available to Contributor and its respective advisors. Contributor has reviewed Company's Registration Statement, referenced above, and any other documents filed by Company since January 1, 1997 in accordance with the requirements of the Series Q Preferred Shares Exchange Act of 1934, including any business plans or strategies of Company or of Operation Partnership set forth therein.
(except potentially two individuals who would each be treated as owning less than 15% i) None of Contributor or any of its advisors, including Xxxxxxx Xxxxx & Co., is aware of or has engaged in any form of general solicitation or advertising with respect to sales of the outstanding shares of the Series Q Preferred Shares, provided that neither such individual would be treated as owning more than 9.9% of the combined number of outstanding shares of the Series Q Preferred Shares, the Series N Preferred Shares, the Series J Preferred Shares and the Series G Preferred Shares, also evaluating the Series N Preferred Preference Units, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio; and (ii) any seminar or meeting whose attendees were invited by any general solicitation or general advertising.
(j) Contributor shall accept an interest in a global certificate representing the Series J Preferred Preference Units with the following legends appearing thereon: THE PARTNERSHIP UNITS REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF THE PARTNERSHIP AGREEMENT (A COPY OF WHICH IS ON FILE WITH THE OPERATING PARTNERSHIP). EXCEPT AS OTHERWISE PROVIDED IN THE PARTNERSHIP AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE PARTNERSHIP UNITS REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR (B) IF THE OPERATING PARTNERSHIP HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER OF THE PARTNERSHIP UNITS REPRESENTED BY THIS CERTIFICATE OR OTHER EVIDENCE SATISFACTORY TO THE OPERATING PARTNERSHIP THAT SUCH TRANSFER, SALE ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE ACT AND THE RULES AND REGULATIONS IN EFFECT THEREUNDER. Contributor and the Series G Preferred Units Manager of Contributor hereby expressly permit Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, as counsel to Company, and Xxxxxx & Xxxxxxx, as counsel to Company and Operating Partnership, to rely upon representations and warranties set forth above as if each such outstanding unit had been exchanged for a corresponding Series N Preferred Share, Series J Preferred Share or Series G Preferred Share, as applicable). For this purpose, ownership shall be determined under Section 856(h) representations and warranties were made by Contributor and Manager of the Code Contributor directly to Xxxxxxx Xxxxx Xxxxxxx & Ingersoll and the applicable regulations, which apply Code Sections 542(a)(2) and 544, as modifiedXxxxxx & Xxxxxxx.
Appears in 1 contract
Samples: Contribution Agreement (National Golf Properties Inc)
REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR. Contributor and Parent make hereby makes the following representations and warranties to Operating Partnership and Companywarranties, all each of which (except as otherwise designated) are true is deemed to be material and correct in all material respects on the Agreement Date and shall each of which is stated by Contributor to be true and correct in all material respects as of on the date of the Closinghereof:
(a) Contributor is duly organized has full legal power and validly existing under the laws of the state of Delaware and has been duly authorized by all necessary and appropriate action authority to enter into and perform this Agreement and to consummate the transactions contemplated hereinin accordance with its terms. This Agreement is a constitutes the valid and binding obligation of Contributor, enforceable against Contributor in accordance with its terms, except insofar as such enforceability enforcement may be affected by bankruptcy, insolvency or similar and other laws affecting creditor’s the rights generally of creditors generally. The execution, delivery and the availability of any particular equitable remedy.
(b) Neither the execution nor the delivery performance of this Agreement nor the consummation of the transactions contemplated herein nor fulfillment and all documents in connection therewith are not in contravention of or compliance with the terms and conditions hereof (a) in conflict with any agreement or will result in a breach of any of the terms, conditions or provisions of (i) the Governing Documents of Contributor or (ii) any agreement, order, judgment, decree, arbitration award, statute, law, rule, regulation or instrument undertaking to which Contributor is a party or by which it Contributor may be bound or its assets are bound, or affected; and
(b) constitutes or will constitute (with or without due notice or lapse of time or both) a breach, violation or default (or give rise to any right of termination, cancellation or acceleration) under any of the foregoing, or result in the creation of any lien, charge or encumbrance pursuant to any of the foregoing. No consent or approval, authorization, order, regulation or qualification of any governmental entity or any third-party is required for the The execution and delivery of this Agreement and the consummation payment and performance by Contributor of the transactions contemplated hereby its payments and obligations hereunder require no further action or approval in order to constitute this Agreement as a binding and enforceable obligation of Contributor, and all such actions have been duly taken by Contributor.
(c) Contributor acknowledges that the Series Q Preferred Units have not been and will not be registered or qualified under the Securities Act or any state securities laws and are offered in reliance upon an exemption from registration under Section 4(2) As of the Securities Act expiration of the Approval Period and similar state law exceptions. The Series Q Preferred Units as of the Closing Date (i) Contributor will have received and reviewed all materials provided to be received Contributor by Partnership pursuant to Sections 4 and 5 above (collectively, the "Due Diligence Materials"), (ii) Contributor hereunder and any Series Q Preferred Shares acquired will have inspected the Property, (iii) Contributor will have made such investigation of the information contained in exchange therefor shall be held by Contributor for investment purposes only for its own accountthe Due Diligence Materials as it deems appropriate, and not with a view to or for sale in connection with any distribution (iv) Contributor is satisfied based upon its examination of the Series Q Preferred Units or such Series Q Preferred SharesDue Diligence Materials and its investigation of all other aspects of the Property which Contributor deems material to its contribution, including, without limitation, the condition of title to the Property, the zoning of the Property, the condition and Contributor acknowledges that physical aspects of all structures located on the Series Q Preferred Units and Series Q Preferred Shares cannot be sold or otherwise disposed of by Real Property (including the holders thereof unless they are subsequently registered under the Securities Act or sold or otherwise disposed of pursuant to an exemption therefrom; Improvements) and the Series Q Preferred Units may not be soldpresence or absence of Hazardous Substances on the Property. Except as specifically set forth in Paragraph 13, assigned or otherwise transferred except in compliance with (i) the Partnership Agreement. and its current partners have made no warranties, representations or promises concerning the Property and (ii) the Contributor hereby acknowledges receipt of is becoming a copy general partner of the Partnership Agreement and represents that it has reviewed same and understands the provisions thereof which have a bearing is making its Contribution on the representations made in this Paragraph 7A(c)as "AS IS, WHERE IS, WITH ALL FAULTS" basis.
(d) Contributor has no contract, understanding, agreement or arrangement with any Person or entity to sell, transfer or grant a participation to such Person or entity or any other Person or entity, with respect to any or all of the Series Q Preferred Units it will receive in accordance with the provisions hereof or any Series Q Preferred Shares to be acquired in exchange therefor.
(e) Contributor is an “accredited investor” within the meaning of Regulation D under the Securities Act and has knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of receiving and owning the Series Q Preferred Units and Contributor is able to bear the economic risk of such ownership.
(f) Contributor is not an employee benefit plan subject to ERISA or Section 4975 of the Code.
(g) In making this investment, Contributor is relying upon the advice of its own personal, legal and tax advisors with respect to the tax and other aspects of an investment in Operating Partnership.
(h) To the best of Contributor’s and Parent’s knowledge, applying the REIT stock ownership rules described below, if the Series Q Preferred Shares were issued to Contributor at the time of (and instead of) the issuance of the Series Q Preferred Units, and to no other Person, no “individual” would be treated as owning more than 9.9% of the outstanding shares of the Series Q Preferred Shares (except potentially two individuals who would each be treated as owning less than 15% of the outstanding shares of the Series Q Preferred Shares, provided that neither such individual would be treated as owning more than 9.9% of the combined number of outstanding shares of the Series Q Preferred Shares, the Series N Preferred Shares, the Series J Preferred Shares and the Series G Preferred Shares, also evaluating the Series N Preferred Units, the Series J Preferred Units and the Series G Preferred Units as if each such outstanding unit had been exchanged for a corresponding Series N Preferred Share, Series J Preferred Share or Series G Preferred Share, as applicable). For this purpose, ownership shall be determined under Section 856(h) of the Code and the applicable regulations, which apply Code Sections 542(a)(2) and 544, as modified.
Appears in 1 contract
Samples: Agreement to Contribute Capital and Escrow Instructions (Arden Realty Inc)
REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR. Contributor hereby represents and Parent make warrants to the following Company and the Operating Partnership as set forth below in this Section 3.3, which representations and warranties to Operating Partnership and Company, all of which (except as otherwise designated) are true and correct in all material respects on the Agreement Date and shall be true and correct in all material respects as of the date hereof (or such other date specifically set forth below), except as disclosed in the Consent Solicitation, the Prospectus or the disclosure letter delivered from Contributor to the Company and the Operating Partnership simultaneously with the execution of this Agreement (the “Disclosure Letter”), as may be amended from time to time prior to the Closing Date with Consent of the ClosingCompany and the Operating Partnership:
(a) Organization; Authority.
(i) Contributor is a [limited liability company], duly organized and validly existing and in good standing under the laws Laws of the state its jurisdiction of Delaware organization and has been duly authorized by all necessary requisite power and appropriate action authority to enter into this Agreement and to consummate the transactions each agreement or other document contemplated herein. This Agreement is a valid and binding obligation of Contributor, enforceable against Contributor in accordance with its terms, except insofar as such enforceability may be affected by bankruptcy, insolvency or similar laws affecting creditor’s rights generally and the availability of any particular equitable remedy.
(b) Neither the execution nor the delivery of this Agreement nor the consummation of the transactions contemplated herein nor fulfillment of or compliance with the terms and conditions hereof (a) conflict with or will result in a breach of any of the terms, conditions or provisions of (i) the Governing Documents of Contributor or (ii) any agreement, order, judgment, decree, arbitration award, statute, law, rule, regulation or instrument to which Contributor is a party or by which it or its assets are bound, or (b) constitutes or will constitute (with or without due notice or lapse of time or both) a breach, violation or default (or give rise to any right of termination, cancellation or acceleration) under any of the foregoing, or result in the creation of any lien, charge or encumbrance pursuant to any of the foregoing. No consent or approval, authorization, order, regulation or qualification of any governmental entity or any third-party is required for the execution and delivery of this Agreement and the consummation of to carry out the transactions contemplated hereby by and thereby, and to own, lease and/or operate its Property, as applicable, and its other assets, and to carry on its business as presently conducted. Contributor, to the extent required under applicable Laws, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its Property make such qualification necessary, other than such failures to be so qualified as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(cii) Contributor acknowledges that the Series Q Preferred Units have not been and will not be registered or qualified under the Securities Act or any state securities laws and are offered in reliance upon an exemption from registration under Section 4(23.3(a) of the Securities Act and similar state law exceptions. The Series Q Preferred Units to be received by Contributor hereunder and any Series Q Preferred Shares acquired in exchange therefor shall be held by Contributor for investment purposes only for its own account, and not with a view to or for sale in connection with any distribution Disclosure Letter sets forth as of the Series Q Preferred Units or such Series Q Preferred Shares, and Contributor acknowledges that the Series Q Preferred Units and Series Q Preferred Shares cannot be sold or otherwise disposed of by the holders thereof unless they are subsequently registered under the Securities Act or sold or otherwise disposed of pursuant to an exemption therefrom; and the Series Q Preferred Units may not be sold, assigned or otherwise transferred except in compliance with the Partnership Agreement. Contributor hereby acknowledges receipt of a copy of the Partnership Agreement and represents that it has reviewed same and understands the provisions thereof which have a bearing on the representations made in this Paragraph 7A(c).
(d) Contributor has no contract, understanding, agreement or arrangement with any Person or entity to sell, transfer or grant a participation to such Person or entity or any other Person or entity, date hereof with respect to any or all Contributor (A) each Subsidiary of Contributor, if applicable, (B) the ownership interest in each such Subsidiary and (C) if not wholly owned by Contributor, the identity and ownership interest of each of the Series Q Preferred Units it will receive in accordance with the provisions hereof other owners of such Subsidiary. Each real property owned or any Series Q Preferred Shares leased pursuant to be acquired in exchange therefor.
(e) a ground lease or operating lease by such Contributor is an “accredited investor” within the meaning set forth on Exhibit A. Each Subsidiary of Regulation D Contributor has been duly organized and is validly existing and in good standing under the Securities Act Laws of its jurisdiction of organization, and has knowledge all power and experience in financial authority to own, lease and/or operate its real properties and business matters such that it is capable of evaluating the merits and risks of receiving and owning the Series Q Preferred Units and Contributor is able to bear the economic risk of such ownership.
(f) Contributor is not an employee benefit plan subject to ERISA or Section 4975 of the Code.
(g) In making this investment, Contributor is relying upon the advice of its own personal, legal and tax advisors with respect to the tax and other aspects of an investment in Operating Partnership.
(h) To the best of Contributor’s and Parent’s knowledge, applying the REIT stock ownership rules described below, if the Series Q Preferred Shares were issued to Contributor at the time of (and instead of) the issuance of the Series Q Preferred Unitsassets, and to no carry on its business as presently conducted. Each Subsidiary of Contributor, to the extent required under applicable Laws, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its Property make such qualification necessary, other Personthan such failures to be so qualified as would not, no “individual” would individually or in the aggregate, reasonably be treated as owning more than 9.9% of the outstanding shares of the Series Q Preferred Shares (except potentially two individuals who would each be treated as owning less than 15% of the outstanding shares of the Series Q Preferred Shares, provided that neither such individual would be treated as owning more than 9.9% of the combined number of outstanding shares of the Series Q Preferred Shares, the Series N Preferred Shares, the Series J Preferred Shares and the Series G Preferred Shares, also evaluating the Series N Preferred Units, the Series J Preferred Units and the Series G Preferred Units as if each such outstanding unit had been exchanged for expected to have a corresponding Series N Preferred Share, Series J Preferred Share or Series G Preferred Share, as applicable). For this purpose, ownership shall be determined under Section 856(h) of the Code and the applicable regulations, which apply Code Sections 542(a)(2) and 544, as modifiedMaterial Adverse Effect.
Appears in 1 contract
Samples: Contribution Agreement
REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR. The Contributor and Parent make makes the following representations and warranties to Operating Partnership and Company, all of which (except as otherwise designated) are true and correct in all material respects on the Agreement Date and shall be true and correct in all material respects as of the date hereof and as of Closing: A To the best of the Closing:Contributor's knowledge, the leases (the "Leases") listed on the rent roll attached hereto as Exhibit G and the contracts listed on the attached Exhibit H (the "Contracts") comprise all of the leases and rights to the property and all of the contracts to which Partnership will be subject on the Closing Date
(a) Contributor is duly organized and validly existing B. All of Contributor's obligations under the laws Leases and Contracts are fully performed and, to the best of the state of Delaware and has been duly authorized by all necessary and appropriate action to enter into this Agreement and to consummate the transactions contemplated herein. This Agreement is a valid and binding obligation of such Contributor, enforceable against Contributor in accordance with its terms's knowledge, except insofar as such enforceability may be affected by bankruptcyset forth on the attached Exhibits and except for delinquencies in the payment of rent for the current month, insolvency or similar laws affecting creditor’s rights generally and the availability of any particular equitable remedy.
(b) Neither the execution nor the delivery of this Agreement nor the consummation of the transactions contemplated herein nor fulfillment of or compliance with the terms and conditions hereof (a) conflict with or will result in a breach of there is no default under any of the termsLeases and Contracts by any party thereto or no event which, conditions with the giving of notice or provisions passage of time, or both, would constitute a default thereunder. There are no other security deposits (ithe "Security Deposits") except as identified on Exhibit G.
C. The Contributor has made no prior assignment or conveyance of the Governing Documents Leases, Security Deposits and Contracts and the Contributor is the valid holder of landlord's interest in the Leases, and has the full power and authority to assign its interest in the Leases, Security Deposits and Contracts to Partnership. D To the best of the Contributor's knowledge, there is no litigation, proceeding or investigation pending, or to the knowledge of the Contributor threatened, against or affecting the Contributor that might affect or relate to the validity of this Agreement, any action taken or to be taken pursuant hereto, or the Property or the Other Items or any part or the operation thereof, whether or not fully covered by insurance. E To the best of the Contributor's knowledge, the Contributor has not received any written notices from any governmental authority or agency having jurisdiction over the Contributor or (ii) the Property that the Contributor, the Property or the Other Items are in violation of, any agreementlaw, order, judgment, decree, arbitration award, statute, lawordinance, rule, regulation or instrument to which Contributor is a party code or by which it condition in any approval or its assets are boundpermit pursuant thereto (including without limitation, any zoning, sign, environmental, labor, safety, health or (b) constitutes price or will constitute (with or without due notice or lapse of time or both) a breachwage control, violation or default (or give rise to any right of terminationordinance, cancellation or acceleration) under any of the foregoing, or result in the creation of any lien, charge or encumbrance pursuant to any of the foregoing. No consent or approval, authorization, orderrule, regulation or qualification order of) applicable to the ownership, development, operation or maintenance of the Property or the Other Items. Promptly upon receipt of any governmental entity such notice, the Contributor shall provide the Partnership with a copy. F All of Tower's obligations under the Management Agreement have been performed and the Partnership has no claim of any nature against Tower or any third-party is required for of its successors and assigns relating to the execution Management Agreement. The Partnership acknowledges, understands and delivery of agrees that, except as provided in this Agreement and to the consummation contrary, Partnership's acquisition of the transactions contemplated hereby by Contributor.
(c) Contributor acknowledges that the Series Q Preferred Units have not been Property and will not be registered or qualified under the Securities Act or Other Items and any state securities laws other rights and are offered in reliance upon an exemption from registration under Section 4(2) of the Securities Act and similar state law exceptions. The Series Q Preferred Units interests to be received by Contributor hereunder contributed, conveyed, transferred and/or assigned is on an "AS IS" "WHERE IS" PHYSICAL BASIS, WITHOUT REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH REGARD TO PHYSICAL CONDITION OR COMPLIANCE WITH ANY LEGAL REQUIREMENTS OR TITLE EXCEPTIONS OF THE PROPERTY, INCLUDING WITHOUT LIMITATION ANY LATENT OR PATENT DEFECTS, CONDITION OF SOILS (INCLUDING SURFACE AND SUBSURFACE CONDITIONS), EXISTENCE OR NON EXISTENCE OF HAZARDOUS SUBSTANCES OR POLLUTANTS, QUALITY OF CONSTRUCTION, STATE OF REPAIR, WORKMANSHIP, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR AS TO THE PHYSICAL MEASUREMENTS OR USABLE SPACE THEREOF, TITLE TO THE PROPERTY, THE ASSIGNABILITY, ASSUMABILITY OR TRANSFERABILITY OR VALIDITY OF ANY LICENSES, PERMITS, GOVERNMENT APPROVALS, WARRANTIES OR GUARANTIES RELATING TO THE PROPERTY OR THE USE OR OPERATION THEREOF, ZONING, BUILDING CODE, ACCESS, ENVIRONMENTAL, FIRE OR LIFE SAFETY, SUBDIVISION OR OTHER ORDINANCES, LAWS, CODES OR REGULATIONS, OF ANY KIND, PRIOR OR CURRENT OPERATIONS CONDUCTED ON THE PROPERTY AND SURROUNDING PROPERTY, OR ANY COVENANTS, CONDITIONS, RESTRICTIONS OR DECLARATIONS OF RECORD AND ALL OTHER MATTERS OR THINGS AFFECTING OR RELATING TO THE PROPERTY. As used in the foregoing representations and any Series Q Preferred Shares acquired in exchange therefor shall be held by Contributor for investment purposes only for its own accountwarranties, and not with a view the phrase "to or for sale in connection with any distribution of the Series Q Preferred Units or such Series Q Preferred Shares, and Contributor acknowledges that the Series Q Preferred Units and Series Q Preferred Shares cannot be sold or otherwise disposed of by the holders thereof unless they are subsequently registered under the Securities Act or sold or otherwise disposed of pursuant to an exemption therefrom; and the Series Q Preferred Units may not be sold, assigned or otherwise transferred except in compliance with the Partnership Agreement. Contributor hereby acknowledges receipt of a copy of the Partnership Agreement and represents that it has reviewed same and understands the provisions thereof which have a bearing on the representations made in this Paragraph 7A(c).
(d) Contributor has no contract, understanding, agreement or arrangement with any Person or entity to sell, transfer or grant a participation to such Person or entity or any other Person or entity, with respect to any or all of the Series Q Preferred Units it will receive in accordance with the provisions hereof or any Series Q Preferred Shares to be acquired in exchange therefor.
(e) Contributor is an “accredited investor” within the meaning of Regulation D under the Securities Act and has knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of receiving and owning the Series Q Preferred Units and Contributor is able to bear the economic risk of such ownership.
(f) Contributor is not an employee benefit plan subject to ERISA or Section 4975 of the Code.
(g) In making this investment, Contributor is relying upon the advice of its own personal, legal and tax advisors with respect to the tax and other aspects of an investment in Operating Partnership.
(h) To the best of Contributor’s 's knowledge" shall mean the actual, conscious knowledge of Xxxxx X. Xxxxxx, the Contributor's Director of Operations. The representations and Parent’s knowledge, applying the REIT stock ownership rules described below, if the Series Q Preferred Shares were issued to Contributor at the time of (and instead of) the issuance warranties of the Series Q Preferred UnitsContributor contained in this Agreement, the statements in any Exhibit or Schedules attached to this Agreement, or other instruments furnished to Partnership at or prior to Closing pursuant to this Agreement, or in connection with the transactions contemplated pursuant to this Agreement, do not contain any untrue statements of a material fact, or fail to state a material fact necessary to make it not misleading. The representations and to no other Person, no “individual” would be treated as owning more than 9.9% warranties contained herein shall not survive delivery of the outstanding shares Deed and shall merge therein. This expiration shall not apply to the representation set forth in paragraphs 16.D. and 16.F. or to any breach of warranty or representation which arises out of an intentional material misrepresentation made by the Series Q Preferred Shares (except potentially two individuals who would each be treated as owning less than 15% of the outstanding shares of the Series Q Preferred Shares, provided that neither such individual would be treated as owning more than 9.9% of the combined number of outstanding shares of the Series Q Preferred Shares, the Series N Preferred Shares, the Series J Preferred Shares and the Series G Preferred Shares, also evaluating the Series N Preferred Units, the Series J Preferred Units and the Series G Preferred Units as if each such outstanding unit had been exchanged for a corresponding Series N Preferred Share, Series J Preferred Share or Series G Preferred Share, as applicable). For this purpose, ownership shall be determined under Section 856(h) of the Code and the applicable regulations, which apply Code Sections 542(a)(2) and 544, as modifiedContributor.
Appears in 1 contract
Samples: Contribution Agreement (Home Properties of New York Inc)
