Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following: (a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either (i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or (ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof. (b) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents. (c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that: (i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents; (ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not: (A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing; (B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; or
Appears in 3 contracts
Samples: Option Agreement (Tower Realty Trust Inc), Option Agreement (Tower Realty Trust Inc), Option Agreement (Tower Realty Trust Inc)
Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C A attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
3 4 (i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; or
Appears in 2 contracts
Samples: Option Agreement (Tower Realty Trust Inc), Option Agreement (Tower Realty Trust Inc)
Documents to Be Delivered at the Closing. 4.1. Documents To Be Delivered to the Buyer by the Company and the ------------------------------------------------------------- Sellers. At or prior to the Closing, the Grantor shall, directly or through Company and the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and Sellers will -------- deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the followingBuyer:
(a) An assignment Against receipt of the Interests payment of the Closing Payment Amount, (i) the "ASSIGNMENT")Founders will deliver and cause to be delivered to the Buyer certificates or assignments for 100% of the Units and (ii) NAV will deliver to the Buyer certificates or assignments for the Warrant and the Convertible Debenture, all in accordance with the requirements of Section 2.1 hereof, which certificates or assignments will be duly endorsed in blank or accompanied by unit or other transfer powers duly executed in blank, in proper form for transfer;
(b) Against receipt from the Buyer of payment of the principal amount and accrued interest thereunder, NAV will deliver to the Buyer the Amortizing Debenture as provided in Section 2.1 hereof, which shall be marked "paid in full" and otherwise in proper form for cancellation;
(c) A Unit Holders Representative Agreement duly executed by each of the Minority Unit Holders;
(d) A certificate, in form and substance reasonably acceptable to the Buyer, executed by the President of the Company, and attested to by the Secretary of the Company, dated the Closing Date, and certifying that: (i) attached thereto is a true and complete copy of the Charter Documents of the Company and the Subsidiary, as in effect on the Closing Date; (ii) attached thereto is a true and complete copy of resolutions duly adopted by the Board of Managers of the Company and the Board of Directors of the Subsidiary authorizing the execution, delivery, and performance of this Agreement; and (iii) such resolutions have not been modified, rescinded, or amended and are in full force and effect;
(e) A certificate, in form and substance reasonably acceptable to the Buyer, executed by the President of the Company and the Subsidiary, dated the Closing Date, certifying as to the accuracy of the representations and warranties of the Company and the Subsidiary at and as of the Closing and the performance by the Company and the Subsidiary of their respective covenants and agreements to be performed prior to the Closing Date;
(f) A certificate, in form and substance reasonably acceptable to the Buyer, executed by each of the Founders, by the Minority Unit Holders or on behalf of them by the Minority Unit Holders Representative, and by the general partner of NAV, dated the Closing Date, certifying as to the accuracy of their respective representations and warranties at and as of the Closing and the performance of their respective agreements to be performed prior to the Closing Date;
(g) Resignations of all of managers, directors and officers of the Company provided, however, that such resignation shall not terminate the existing employment agreement with Xxxxx Xxxxx;
(h) All contracts, books, records, and other data of the Company and the Subsidiary relating to their operations, including the Company's minute and unit books and the Subsidiary's minute and stock record books;
(i) An Employment Agreement substantially in the form attached hereto as Exhibit C D executed by Xxxxxx (the "Employment Contract"); ---------
(j) A Non-Solicitation and Non-Competition Agreement substantially in the form attached hereto and shall contain a warranty of title that as Exhibit E (the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i"Non-Competition Agreement") reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereofexecuted --------- by Xxxxx.
(bk) If requested by A certificate of good standing of the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement Company and the Closing Documents.
(c) If requested by Subsidiary from the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws Secretary of State of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement of the Company and the Subsidiary, and a certificate from the Secretary of each jurisdiction in which the Company and the Subsidiary owns or leases real property or otherwise does business evidencing the authorization of the Company and the Subsidiary to conduct business as a foreign entity in such State, dated not earlier than ten (10) days prior to the Closing DocumentsDate;
(iil) Executed agreements in form and substance satisfactory to the executionBuyer and the holders of all unexercised Company options, delivery and performance signed by the Grantor holders of this Agreement and the Closing Documentsall unexercised Company options, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach rights or a violation other interests to purchase or otherwise acquire units of the Grantor's charter and/or bylawsCompany terminating such options, partnership agreementrights or other interests, operating agreement and articles of organization or declaration of trust, as applicable, or, other evidence satisfactory to the knowledge Buyer of the exercise of such counseloptions, any indenture, deed of trust, mortgage, loan or credit agreement rights or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closinginterests;
(Bm) The Escrow Agreement executed by the Sellers;
(n) The opinion of counsel for the Company and the Subsidiary in substantially the form attached hereto as Exhibit F-1; -----------
(o) The opinion of counsel for NAV in substantially the form attached hereto as Exhibit F-2;
(p) The list of employees and employee remuneration referred to in Section 5.25 of this Agreement;
(q) The description of material claims experience of the Company and the Subsidiary as provided in Section 7.8 of this Agreement;
(r) An estoppel certificate from the Company's and the Subsidiary's current landlords with respect to property leased in Massachusetts in the form approved by the Buyer's counsel (it being understood and agreed that the Company and Subsidiary shall be required to use reasonable efforts to obtain an estoppel certificate with respect to the knowledge of such counsel, constitute a violation or any order, judgment or decree lease for New Hampshire;
(s) Counsel shall have an agreement executed by Xxxxxx in form and substance satisfactory to which the Grantor is a party or Buyer by which it Xxxxxx terminates all existing employment agreements and arrangements between Xxxxxx and the Company and between Xxxxxx and the Subsidiary; and
(t) Such other certificates and documents as the Buyer or any of its assets or properties are bound or affected; orcounsel may reasonably request.
Appears in 1 contract
Samples: Unit Purchase Agreement (Choice One Communications Inc)
Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENTAssignment"), which shall be in the form attached hereto as Exhibit C attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; or
Appears in 1 contract
Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor Grantors shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C attached hereto E and shall contain a warranty of title that the Grantor owns Grantors own the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor Grantors can no longer make or comply with, represent that the Grantor has Grantors have used reasonable efforts to take such actions as would permit the Grantor Grantors to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the a Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the said Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the a Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; orthe
Appears in 1 contract
Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C A attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts efforts, which shall not require Grantor to commence litigation, to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; orwhich
Appears in 1 contract
Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C E attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; or
Appears in 1 contract
Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; or
(C) to the knowledge of such counsel, result in the creation of any lien, charge or encumbrance upon any of the Grantor's assets or properties, except for Permitted Pledges (as defined in Section 3.1(a)); and
(iii) all applicable corporate, partnership, limited liability company or trust action necessary for the Grantor to execute and deliver this Agreement and the Closing Documents and to perform the transactions contemplated hereby and thereby has been taken and that the same have been validly executed and delivered and are the valid and binding obligations of the Grantor enforceable against it in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights and remedies generally.
(d) An affidavit establishing an exemption from the withholding requirements of the Foreign Investment in Real Property Tax Act ("FIRPTA"), as amended, provided, however, that if the Grantor fails to provide such an affidavit, the Operating Partnership shall be entitled to withhold from the Acquisition Consideration and pay to the Internal Revenue Service the sums required to be withheld pursuant to FIRPTA (and the amount so withheld shall be paid by the Operating Partnership to the Internal Revenue Service, in order for the Operating Partnership to comply with the provisions of Section 1445 of the Internal Revenue Code of 1986 or successor similar legislation, as the same may be amended hereafter).
Appears in 1 contract
Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C E attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; or
(C) to the knowledge of such counsel, result in the creation of any lien, charge or encumbrance upon any of the Grantor's assets or properties, except for Permitted Pledges (as defined in Section 3.1(a)); and
(iii) all applicable corporate, partnership, limited liability company or trust action necessary for the Grantor to execute and deliver this Agreement and the Closing Documents and to perform the transactions contemplated hereby and thereby has been taken and that the same have been validly executed and delivered and are the valid and binding obligations of the Grantor enforceable against it in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights and remedies generally.
(d) An affidavit establishing an exemption from the withholding requirements of the Foreign Investment in Real Property Tax Act ("FIRPTA"), as amended, provided, however, that if the Grantor fails to provide such an affidavit, the Operating Partnership shall be entitled to withhold from the Acquisition Consideration and pay to the Internal Revenue Service the sums required to be withheld pursuant to FIRPTA (and the amount so withheld shall be paid by the Operating Partnership to the Internal Revenue Service, in order for the Operating Partnership to comply with the provisions of Section 1445 of the Internal Revenue Code of 1986 or successor similar legislation, as the same may be amended hereafter).
Appears in 1 contract
