REPRESENTATIONS AND WARRANTIES OF THE OPERATING PARTNERSHIP. The Operating Partnership hereby represents and warrants to the Contributors that: (a) it is duly organized as a limited partnership and validly existing under the laws of the State of Delaware and is, or at the Closing will be, duly qualified in each state in which it conducts business; (b) it has all necessary legal and contractual right, power and authority to enter into this Agreement and to perform its obligations hereunder, including the execution, delivery and performance of all other Documents; (c) it has duly authorized, executed and delivered this Agreement and will have at the Closing duly authorized, executed and delivered the other Documents and this Agreement constitutes, and at the Closing, each of the other Documents will constitute, a legal, valid and binding obligation of the Operating Partnership, enforceable against the Operating Partnership in accordance with the terms hereof and thereof, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium and other laws affecting enforceability of creditors' rights generally and general principles of equity; (d) none of the execution, delivery or performance of this Agreement or the other Documents by the Operating Partnership will, with or without the giving of notice, lapse of time or both, violate, conflict with or constitute a default under any term or condition of (A) the OP Agreement or (B) any term or provision of any judgment, decree, order, statute, injunction, rule or regulation of a governmental unit applicable to the Operating Partnership or any material contract, agreement or instrument to which the Operating Partnership is a party or by which its properties or assets may be bound (the violation of which, in the case of either (A) or (B), would have a material adverse effect upon the Operating Partnership); (e) upon execution of the OP Agreement by the Contributors, the Contributors will be duly admitted as a limited partner of the Operating Partnership; and (f) the Operating Partnership will acquire the Contributed Interests in the Company for investment and not with a view to the distribution (within the meaning of section 2(11) of the Securities Act) thereof.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE OPERATING PARTNERSHIP. The Operating Partnership hereby represents and warrants to the Contributors thatWirtxx xxxt:
(a) it is duly organized as a limited partnership and validly existing under the laws of the State of Delaware and is, or at the Closing will be, duly qualified in each state in which it conducts business;
(b) it has all necessary legal and contractual right, power and authority to enter into this Agreement and to perform its obligations hereunder, including the execution, delivery and performance of all other Documents;
(c) it has duly authorized, executed and delivered this Agreement and will have at the Closing duly authorized, executed and delivered the other Documents and this Agreement constitutes, and at the Closing, each of the other Documents will constitute, a legal, valid and binding obligation of the Operating Partnership, enforceable against the Operating Partnership in accordance with the terms hereof and thereof, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium and other laws affecting enforceability of creditors' rights generally and general principles of equity;
(d) none of the execution, delivery or performance of this Agreement or the other Documents by the Operating Partnership will, with or without the giving of notice, lapse of time or both, violate, conflict with or constitute a default under any term or condition of (A) the OP Agreement or (B) any term or provision of any judgment, decree, order, statute, injunction, rule or regulation of a governmental unit applicable to the Operating Partnership or any material contract, agreement or instrument to which the Operating Partnership is a party or by which its properties or assets may be bound (the violation of which, in the case of either (A) or (B), would have a material adverse effect upon the Operating Partnership);
(e) upon execution of the OP Agreement by the ContributorsWirtxx, the Contributors will xxe Wirtxx xxxl be duly admitted as a limited partner of the Operating Partnership; and
(f) the Operating Partnership will acquire the Contributed Interests in the Company for investment and not with a view to the distribution (within the meaning of section 2(11) of the Securities Act) thereof.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE OPERATING PARTNERSHIP. The Operating Partnership hereby represents repre- sents and warrants to the Contributors thatTrustee that as of the Closing Date:
(ai) it the Operating Partnership is duly organized as a limited partnership and partnership, duly organized, validly existing and in good standing under the laws of the State of Delaware and is, or at the Closing will be, duly qualified in each state in which it conducts businessDelaware;
(bii) it the execution and delivery of this Agreement by the Operating Partnership and its performance of and compliance with the terms of this Agreement will not violate the Operating Partnership's limited partnership agreement or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which the Operating Partnership is a party or which may be applicable to the Operating Partnership or any of its assets;
(iii) the Operating Partnership has all necessary legal and contractual right, the full power and authority to enter into and consummate all transactions contemplated by this Agreement and to perform its obligations hereunderAgreement, including has duly authorized the execution, delivery and performance of all other Documents;
(c) it this Agreement and has duly authorized, executed and delivered this Agreement Agreement. This Agreement, upon its execution and will have at the Closing duly authorized, executed and delivered the other Documents and this Agreement constitutes, and at the Closing, each delivery on behalf of the other Documents Operating Partnership and assuming due authorization, execution and delivery by the Trustee, will constituteconstitute a valid, a legal, valid legal and binding obligation of the Operating Partnership, enforceable against the Operating Partnership it in accordance with the terms hereof and thereofhereof, except as such enforceability enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and or other laws relating to or affecting enforceability the rights of creditors' rights generally creditors generally, and by general equity principles (regardless of equitywhether such enforcement is considered a proceeding in equity or at law);
(div) none of the executionOperating Partnership is not in violation, and the execution and delivery or performance of this Agreement or the other Documents by the Operating Partnership will, and its performance and compliance with or without the giving terms of notice, lapse of time or both, violate, conflict with or this Agreement will not constitute a default under any term or condition of (A) the OP Agreement or (B) any term or provision violation, of any judgment, decree, order, statute, injunction, rule order or decree of any court or any order or regulation of a governmental unit applicable to the Operating Partnership or any material contractFederal, agreement or instrument to which the Operating Partnership is a party or by which its properties or assets may be bound (the violation of which, in the case of either (A) or (B), would have a material adverse effect upon the Operating Partnership);
(e) upon execution of the OP Agreement by the Contributors, the Contributors will be duly admitted as a limited partner of the Operating Partnership; and
(f) the Operating Partnership will acquire the Contributed Interests in the Company for investment and not with a view to the distribution (within the meaning of section 2(11) of the Securities Act) thereof.State
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE OPERATING PARTNERSHIP. The Operating Partnership hereby represents and warrants to the Contributors thatTransferors as follows:
(a) it has been duly organized, is duly organized validly existing as a limited partnership and validly existing is in good standing under the laws of the State of Delaware and is, or at the Closing will be, duly qualified in each state in which has all requisite power and authority to carry on its business as it conducts businessis currently being conducted;
(b) it has all necessary legal and contractual right, requisite power and authority to enter into into, deliver and perform its obligations under this Agreement and to perform its obligations hereunderconsummate the transactions contemplated hereby, including the execution, delivery power and performance of all other Documentsauthority to issue and deliver the Series F Partnership Units;
(c) it has duly authorized, executed taken all actions necessary to authorize it to enter into and delivered perform its obligations under this Agreement and will have at to consummate the Closing duly authorized, executed and delivered transactions contemplated hereby (including the other Documents and this Agreement constitutes, and at the Closing, each issuance of the other Documents will constitute, Series F Partnership Units). This Agreement is a legal, valid and binding obligation of the Operating Partnership, enforceable against the Operating Partnership in accordance with the terms hereof and thereofits terms, except as such the enforceability hereof may be limited by applicable (i) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and other laws affecting enforceability remedies of creditors' rights generally creditors and (ii) the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law;
(d) none of the execution, delivery or and performance of this Agreement or and the other Documents by consummation of the transactions contemplated hereby will not (i) violate any provision of the Operating Partnership willPartnership's Charter Documents, with (ii) violate any statute or without the giving of notice, lapse of time law or both, violate, conflict with or constitute a default under any term or condition of (A) the OP Agreement or (B) any term or provision of any judgment, decree, order, statute, injunction, regulation or rule of any court or regulation of a governmental unit applicable to the Operating Partnership or any material contract, agreement or instrument authority to which the Operating Partnership is subject or by which it or any of its properties may be bound, except such violations that could not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Operating Partnership and its subsidiaries, taken as a whole, or (iii) violate any agreement to which it is a party or by which it or its properties or assets may be bound, except such violations that could not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Operating Partnership and its subsidiaries, taken as a whole;
(e) all of the Series F Partnership Units to be issued pursuant to this Agreement have been duly authorized and, upon issuance, the Series F Partnership Units will be validly issued;
(f) there are no actions, suits, proceedings, or investigations pending or, to its knowledge, threatened to which it is (or is threatened to be) a party before any court or other governmental authority which could reasonably be expected to have a material adverse effect on the transactions contemplated hereby;
(g) the Operating Partnership has obtained all necessary consents, approvals and authorizations of third parties in order to effect the issuance and delivery of the Series F Partnership Units to the Transferors in accordance with the terms hereof;
(h) WEA has been duly organized, is validly existing and is in good standing under the laws of its jurisdiction of organization and has all requisite organizational power and authority to carry on its business as it is currently being conducted;
(i) except (i) as disclosed in the Charter Documents or in the WEA Reports (as hereinafter defined), and (ii) as set forth in SCHEDULE 7(i), there are no preemptive rights, options, warrants, rights or other securities (or instruments exchangeable or convertible into any of the foregoing) or other agreements to which the Operating Partnership or WEA or any of their respective wholly-owned subsidiaries is a party or by which either of them is bound that entitle the holder thereof to acquire any equity securities or any voting securities of the Operating Partnership, WEA or any of their wholly-owned subsidiaries;
(j) except (i) as disclosed in the violation Charter Documents or in the WEA Reports (as defined below), or (ii) as set forth in SCHEDULE 7(j) hereto, there are no outstanding contractual obligations of whicheither the Operating Partnership or WEA to repurchase, redeem or otherwise acquire any partnership interests, shares of capital stock or other voting or non-voting securities of or ownership interest in such entity;
(k) true, correct and complete copies of the Charter Documents as in effect on the date of this Agreement have been delivered or made available to each Transferor;
(l) WEA has delivered or has made available to each Transferor (i) WEA's annual report on Form 10-K for the year ended December 31, 1999 and (ii) each report, registration statement and proxy statement prepared by WEA and filed with the Securities and Exchange Commission since December 31, 1999, in each case in the form (including exhibits, annexes and any amendments thereto) filed with the Securities and Exchange Commission (collectively, the "WEA REPORTS");
(m) (i) as of the respective dates such documents were filed with the Securities and Exchange Commission, the WEA Reports did not contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading, and (ii) each of the financial statements and supporting schedules included in WEA's Annual Report on Form 10-K for the year ended December 31, 1999 and in WEA's Quarterly Report on Form 10-Q for the quarter ended March 31, 2000 filed with the Securities and Exchange Commission, are true and correct in all material respects and present fairly the consolidated financial position of WEA and its consolidated subsidiaries as of the dates specified and the consolidated results of operation for the periods specified (subject, in the case of either (A) or (Bunaudited statements, to notes and normal year-end audit adjustments), in each case in accordance with generally accepted accounting principles consistently applied ("GAAP") during the periods involved, except as indicated therein or in the notes thereto;
(n) since December 31, 1999, each of WEA and the Operating Partnership has, except as disclosed in the WEA Reports, conducted its business only in the ordinary course and there has not been (i) any occurrence or circumstance that would have a material adverse effect upon on either of their respective business operations, financial condition or results of operations taken as a whole (a "MATERIAL ADVERSE EFFECT") nor has there been any occurrence or circumstance that with the passage of time would reasonably be expected to result in a Material Adverse Effect or (ii) any change in accounting methods, principles or practices by WEA or the Operating Partnership);
(e) upon execution of , except insofar as may have been disclosed in the OP Agreement financial statements contained in the WEA Reports or required by the Contributors, the Contributors will be duly admitted as a limited partner of the Operating Partnershipchange in GAAP; and
(fo) on the Closing Date, the Operating Partnership will acquire the Contributed Interests in the Company be classified and taxable as a partnership for investment and not with a view to the distribution (within the meaning of section 2(11) of the Securities Act) thereofUnited States federal income tax purposes.
Appears in 1 contract
