Common use of Representations and Warranties of the Owner Trustee Clause in Contracts

Representations and Warranties of the Owner Trustee. The Owner Trustee, both in its individual capacity and as Owner Trustee (except that (x) the representations and warranties in Sections 3.1(a)(i), 3.1(a)(ii), 3.1(b)(i) and 3.1(b)(iii) are made by the Owner Trustee solely in its individual capacity and (y) the representations and warranties in Sections 3.1(c) and 3.1(k) are made by the Owner Trustee solely in its capacity as such), represents and warrants to the Owner Participant, each of the other Trustees and the Lessee, notwithstanding the provisions of Section 10.13 or any similar provision in any other Operative Agreement, that, as of the date hereof: (a) the Owner Trustee (i) is a ___________________ duly organized and validly existing in good standing under the laws of ________________, (ii) has full corporate power and authority to carry on its business as now conducted and to enter into and perform its obligations hereunder and under the Trust Agreement and (iii) (assuming due authorization, execution and delivery of the Trust Agreement by the Owner Participant) has full power and authority, as Owner Trustee and/or, to the extent expressly provided herein or therein, in its individual capacity, to enter into and perform its obligations under each of the Owner Trustee Agreements; (i) the Owner Trustee, in its individual capacity, has duly authorized, executed and delivered the Trust Agreement, (ii) (assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant) the Owner Trustee in its trust capacity and, to the extent expressly provided therein, in its individual capacity, has duly authorized, executed and delivered each of the other Owner Trustee Agreements and, as of the Initial Closing Date and the Subsequent Closing Date, each of the Owner Trustee Agreements to be delivered on such Closing Date and (iii) the Trust Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, in its individual capacity, enforceable against it in its individual capacity in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity; (c) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, each of the other Owner Trustee Agreements to which it is a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Owner Trustee, enforceable against it in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity; (d) neither the execution and delivery by the Owner Trustee, in its individual capacity or as Owner Trustee, as the case may be, of the Owner Trustee Agreements or the Equipment Notes, nor the consummation by the Owner Trustee, in its individual capacity or as Owner Trustee, as the case may be, of any of the transactions contemplated hereby or thereby, nor the compliance by the Owner Trustee, in its individual capacity or as Owner Trustee, as the case - 13 - 18 may be, with any of the terms and provisions hereof and thereof, (i) requires or will require any approval of its stockholders, or approval or consent of any trustees or holders of any indebtedness or obligations of it in its individual capacity, or (ii) violates or will violate its certificate of incorporation or by-laws, or contravenes or will contravene any provision of, or constitutes or will constitute a default under, or results or will result in any breach of, any indenture, mortgage, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, license or other agreement or instrument to which the Owner Trustee in its individual capacity is a party or by which it is bound, or result in the creation of any Lien (except for Permitted Liens upon the Units) upon the Trust Estate, or contravenes or will contravene any law, governmental rule or regulation of the United States of America or Massachusetts governing the banking or trust powers of the Owner Trustee, or any judgment or order applicable to or binding on it; (e) there are no Taxes payable by the Owner Trustee, either in its individual capacity or as Owner Trustee, imposed by Massachusetts or any political subdivision thereof or by the United States of America in connection with the execution and delivery by the Owner Trustee in its individual capacity of the Trust Agreement, and, in its individual capacity or as Owner Trustee, as the case may be, of this Agreement, the other Owner Trustee Agreements or the Equipment Notes solely because the Owner Trustee in its individual capacity is a trust company with its principal place of business in Massachusetts and performs certain of its duties as Owner Trustee in Massachusetts; and there are no Taxes payable by the Owner Trustee, in its individual capacity or as Owner Trustee, as the case may be, imposed by Massachusetts or any political subdivision thereof in connection with the acquisition of its interest in the Equipment (other than franchise or other taxes based on or measured by any fees or compensation received by the Owner Trustee for services rendered in connection with the transactions contemplated hereby) solely because the Owner Trustee in its individual capacity is a trust company with its principal place of business in Massachusetts and performs certain of its duties as Owner Trustee in Massachusetts; (f) there are no pending or, to its knowledge, threatened actions or proceedings against the Owner Trustee, either in its individual capacity or as Owner Trustee, before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would materially adversely affect the ability of the Owner Trustee, in its individual capacity or as Owner Trustee, as the case may be, to perform its obligations under the Trust Agreement, the other Owner Trustee Agreements or the Equipment Notes or which question the validity of any Owner Trustee Agreement or any action taken or to be taken pursuant thereto. The Owner Trustee, in its individual capacity and as Owner Trustee, is not in default with respect to any order of any court or governmental authority or arbitration board or tribunal, the default under which would affect adversely the ability of the Owner Trustee, in its individual capacity or as Owner Trustee, to perform its obligations under the Owner Trustee Agreements; (g) both its chief executive office and the place where its records concerning the Equipment and all its interest in, to and under all documents relating to the Trust Estate, are located at , and the Owner Trustee, in its individual capacity, agrees to give the Owner Participant, the Indenture Trustee and the Lessee (h) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any _________________ or local governmental authority or agency or any United States federal governmental authority or agency regulating the banking or trust powers of the Owner Trustee, in its individual capacity, is required for the execution and delivery of, or the carrying out by, the Owner Trustee in its individual capacity or as Owner Trustee, as the case may be, of any of the transactions contemplated hereby or by the Trust Agreement or of any of the transactions contemplated by any of the other Owner Trustee Agreements, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken; (i) on the Initial Closing Date and the Subsequent Closing Date, the Owner Trustee's right, title and interest in and to the Equipment delivered on such Closing Date shall be free of any Liens attributable to the Owner Trustee in its individual capacity except Liens created by the terms of the Operative Agreements; (j) the proceeds received by the Owner Trustee from the Owner Participant pursuant to the Trust Agreement will be administered by it in accordance with Article IV of the Trust Agreement; (k) the Owner Trustee shall receive from the Lessee such title as was conveyed to it by the Lessee, subject to the rights of the Owner Trustee and the Lessee under the Lease and the security interest created pursuant to the Indenture and the Indenture Supplements in respect of the Units delivered on the Initial Closing Date and the Subsequent Closing Date; and (l) the Owner Trustee is not in default under any of the Owner Trustee Agreements and, to its knowledge, no Indenture Default or Indenture Event of Default has occurred and is continuing.

Appears in 1 contract

Samples: Participation Agreement (Union Tank Car Co)

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Representations and Warranties of the Owner Trustee. The Trust --------------------------------------------------- Company (except with respect to clauses (c) and (k) (to the extent applicable to the Owner Trustee in its capacity as Owner Trustee, both in its individual capacity ) below) and as Owner Trustee with respect to clauses (except that (x) the representations and warranties in Sections 3.1(a)(ic), 3.1(a)(ii), 3.1(b)(i(e) (to the extent provided therein) and 3.1(b)(iii(k) are made by (to the extent applicable to the Owner Trustee solely in its individual capacity and (y) the representations and warranties in Sections 3.1(c) and 3.1(k) are made by the Owner Trustee solely in its capacity as such)Owner Trustee) below, represents and warrants to the Owner Participant, each of the other Trustees and the Lessee, notwithstanding the provisions of Section 10.13 or any similar provision in any other Operative Agreement, that, as of the date hereof: (a) the Owner Trustee Trust Company (i) is a ___________________ Delaware banking corporation duly organized and validly existing in good standing under the laws of ________________the State of Delaware, (ii) has full corporate power and authority to carry on its business as now conducted and to enter into and perform its obligations hereunder and under the Trust Agreement and (iii) (assuming due authorization, execution and delivery of the Trust Agreement by the Owner Participant) has full power and authority, as Owner Trustee and/or, to the extent expressly provided herein or therein, in its individual capacity, to enter into and perform its obligations under each of the Owner Trustee Agreements; (i) the Owner Trustee, in its individual capacity, Trust Company has duly authorized, executed and delivered the Trust Agreement, (ii) (assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant) the Owner Trustee in its trust trustee capacity and, to the extent expressly provided therein, in its individual capacity, has duly authorized, executed and delivered each of the other Owner Trustee Agreements and, as of the Initial Closing Date and the Subsequent Closing Date, each of the Owner Trustee Agreements Equipment Notes, the Lease Supplements and the Indenture Supplements to be delivered on such the Closing Date Date, and (iii) the Trust Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, in its individual capacityTrust Company, enforceable against it in its individual capacity in accordance with its terms except as enforceability the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity; (c) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, each of the other Owner Trustee Agreements (other than the Trust Agreement) to which it is a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Owner Trustee, enforceable against it in accordance with its terms terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity; (d) neither the execution and delivery by the Owner TrusteeTrust Company, in its individual capacity or as Owner Trustee, as the case may be, of the Owner Trustee Agreements or the Equipment NotesNotes to be delivered on the Closing Date, nor the consummation by the Owner TrusteeTrust Company, in its individual capacity or as Owner Trustee, as the case may be, of any of the transactions contemplated hereby or thereby, nor the compliance by the Owner TrusteeTrust Company, in its individual capacity capacity, or as Owner Trustee, as the case - 13 - 18 may be, with any of the terms and provisions hereof and thereof, (i) requires or will require any approval of its stockholders, or approval or consent of any trustees or holders of any indebtedness or obligations of it in its individual capacity, or (ii) violates or will violate its certificate of incorporation charter documents or by-laws, or contravenes or will contravene any provision of, or constitutes or will constitute a default under, or results or will result in any breach of, any indenture, mortgage, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, license or other agreement or instrument to which the Owner Trustee in its individual capacity Trust Company is a party or by which it is bound, or result in the creation of any Lien (except for Permitted Liens upon the Units) upon the Trust Estate, or contravenes or will contravene any law, governmental rule or regulation of the United States of America or Massachusetts the State of Delaware governing the banking or trust powers of the Owner TrusteeTrust Company, or any judgment or order applicable to or binding on it; (e) there are no Taxes payable by the Owner Trustee, either in its individual capacity or as Owner Trustee, imposed by Massachusetts or any political subdivision thereof or by the United States of America in connection with the execution and delivery by the Owner Trustee in its individual capacity of the Trust Agreement, and, in its individual capacity or as Owner Trustee, as the case may be, of this Agreement, the other Owner Trustee Agreements or the Equipment Notes solely because the Owner Trustee in its individual capacity is a trust company with its principal place of business in Massachusetts and performs certain of its duties as Owner Trustee in Massachusetts; and there are no Taxes payable by the Owner Trustee, in its individual capacity or as Owner Trustee, as the case may be, imposed by Massachusetts or any political subdivision thereof in connection with the acquisition of its interest in the Equipment (other than franchise or other taxes based on or measured by any fees or compensation received by the Owner Trustee for services rendered in connection with the transactions contemplated hereby) solely because the Owner Trustee in its individual capacity is a trust company with its principal place of business in Massachusetts and performs certain of its duties as Owner Trustee in Massachusetts; (f) there are no pending or, to its knowledge, threatened actions or proceedings against the Owner Trustee, either in its individual capacity or as Owner Trustee, before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would materially adversely affect the ability of the Owner Trustee, in its individual capacity or as Owner Trustee, as the case may be, to perform its obligations under the Trust Agreement, the other Owner Trustee Agreements or the Equipment Notes or which question the validity of any Owner Trustee Agreement or any action taken or to be taken pursuant thereto. The Owner Trustee, in its individual capacity and as Owner Trustee, is not in default with respect to any order of any court or governmental authority or arbitration board or tribunal, the default under which would affect adversely the ability of the Owner Trustee, in its individual capacity or as Owner Trustee, to perform its obligations under the Owner Trustee Agreements; (g) both its chief executive office and the place where its records concerning the Equipment and all its interest in, to and under all documents relating to the Trust Estate, are located at , and the Owner Trustee, in its individual capacity, agrees to give the Owner Participant, the Indenture Trustee and the Lessee (h) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any _________________ or local governmental authority or agency or any United States federal governmental authority or agency regulating the banking or trust powers of the Owner Trustee, in its individual capacity, is required for the execution and delivery of, or the carrying out by, the Owner Trustee in its individual capacity or as Owner Trustee, as the case may be, of any of the transactions contemplated hereby or by the Trust Agreement or of any of the transactions contemplated by any of the other Owner Trustee Agreements, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken; (i) on the Initial Closing Date and the Subsequent Closing Date, the Owner Trustee's right, title and interest in and to the Equipment delivered on such Closing Date shall be free of any Liens attributable to the Owner Trustee in its individual capacity except Liens created by the terms of the Operative Agreements; (j) the proceeds received by the Owner Trustee from the Owner Participant pursuant to the Trust Agreement will be administered by it in accordance with Article IV of the Trust Agreement; (k) the Owner Trustee shall receive from the Lessee such title as was conveyed to it by the Lessee, subject to the rights of the Owner Trustee and the Lessee under the Lease and the security interest created pursuant to the Indenture and the Indenture Supplements in respect of the Units delivered on the Initial Closing Date and the Subsequent Closing Date; and (l) the Owner Trustee is not in default under any of the Owner Trustee Agreements and, to its knowledge, no Indenture Default or Indenture Event of Default has occurred and is continuing.

Appears in 1 contract

Samples: Participation Agreement (Gatx Rail Corp)

Representations and Warranties of the Owner Trustee. The --------------------------------------------------- Owner Trustee, both in its individual capacity (except with respect to clauses (c) and (k) (to the extent applicable to the Owner Trustee in its capacity as Owner Trustee) below) and as Owner Trustee with respect to clauses (except that (x) the representations and warranties in Sections 3.1(a)(ic), 3.1(a)(ii(e) (to the extent provided therein), 3.1(b)(i(f) and 3.1(b)(iii(k) are made by (to the extent applicable to the Owner Trustee solely in its individual capacity and (y) the representations and warranties in Sections 3.1(c) and 3.1(k) are made by the Owner Trustee solely in its capacity as such)Owner Trustee) below, represents and warrants to each of the Owner Participant, each of the other Trustees and the Lessee, notwithstanding the provisions of Section 10.13 or any similar provision in any other Operative Agreement, that, as of the date hereof: (a) the Owner Trustee in its individual capacity (i) is a ___________________ [national banking association] duly organized and validly existing in good standing under the laws of ________________[the United States of America], (ii) has full corporate power and authority to carry on its business as now conducted and to enter into execute, deliver and perform its obligations hereunder and under the Trust Agreement and (iii) (assuming due authorization, execution and delivery of the Trust Agreement by the Owner Participant) has full power and authority, as Owner Trustee and/or, to the extent expressly provided herein or therein, in its individual capacity, to enter into execute, deliver and perform its obligations under each of the Owner Trustee Agreements; (i) the Owner Trustee, in its individual capacity, has duly authorized, executed and delivered the Trust Agreement, (ii) (assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant) the Owner Trustee in its trust capacity and, to the extent expressly provided therein, in its individual capacity, has has, or on or prior to the Closing Date will have, duly authorized, executed and delivered each of the other Owner Trustee Agreements and, as of the Initial Closing Date and the Subsequent Closing Date, each of the Owner Trustee Agreements Equipment Notes, the Lease Supplements and the Indenture Supplements to be delivered on such the Closing Date Date, and (iii) the Trust Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, in its individual capacity, enforceable against it in its individual capacity in accordance with its the terms thereof except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity; (c) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, each of the other Owner Trustee Agreements (other than the Trust Agreement) to which it is a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Owner Trustee, enforceable against it in accordance with its the terms thereof, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity; (d) neither the execution and delivery by the Owner Trustee, in its individual capacity or as Owner Trustee, as the case may be, of the Owner Trustee Agreements or the Equipment NotesNotes to be delivered on the Closing Date, nor the consummation by the Owner Trustee, in its individual capacity or as Owner Trustee, as the case may be, of any of the transactions contemplated hereby or thereby, nor the compliance by the Owner Trustee, in its individual capacity or as Owner Trustee, as the case - 13 - 18 may be, with any of the terms and provisions hereof and thereof, (i) requires or will require any approval of its stockholders, or approval or consent of any trustees or holders of any indebtedness or obligations of it in its individual capacity, or (ii) violates or will violate violate[ its certificate articles of incorporation association] or by-laws, or contravenes or will contravene any provision of, or constitutes or will constitute a default under, or results or will result in any breach of, any indenture, mortgage, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, license or other agreement or instrument to which the Owner Trustee in its individual capacity is a party or by which it is bound, or result in the creation any of any Lien (except for Permitted Liens upon the Units) upon the Trust Estateits properties may be bound or affected, or contravenes or will contravene any law, governmental rule or regulation of the United States of America or Massachusetts the State of [____________] governing the banking or trust powers of the Owner Trustee, or any judgment or order applicable to or binding on it; (e) there are no Taxes payable by the Owner Trustee, either in its individual capacity or as Owner Trustee, imposed by Massachusetts the State of [____________] or any political subdivision thereof or by the United States of America in connection with the execution and delivery by the Owner Trustee in its individual capacity of the Trust Agreement, and, in its individual capacity or as Owner Trustee, as the case may be, of this Agreement, the other Owner Trustee Agreements (other than the Trust Agreement) or the Equipment Notes to be delivered on the Closing Date solely because the Owner Trustee in its individual capacity is a trust company [national banking association] with its principal place of business in Massachusetts [____________] and performs certain of its duties as Owner Trustee in Massachusettsthe State of [____________]; and there are no Taxes payable by the Owner Trustee, in its individual capacity or as Owner Trustee, as the case may be, imposed by Massachusetts the State of [____________]or any political subdivision thereof or by the United States of America in connection with the acquisition of its interest in the Equipment (other than franchise or other taxes based on or measured by any fees or compensation received by the Owner Trustee for services rendered in connection with the transactions contemplated hereby) solely because the Owner Trustee in its individual capacity is a trust company [national banking association] with its principal place of business in Massachusetts [____________] and performs certain of its duties as Owner Trustee in Massachusettsthe State of [____________]; (f) there are no pending or, to its knowledge, threatened actions or proceedings against the Owner Trustee, either in its individual capacity or as Owner Trustee, before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would materially adversely affect the ability of the Owner Trustee, in its individual capacity or as Owner Trustee, as the case may be, to perform its obligations under the Trust Agreement, the other Owner Trustee Agreements or the Equipment Notes or which question the validity of any Owner Trustee Agreement or any action taken or to be taken pursuant thereto. The Owner Trustee, in its individual capacity and as Owner Trustee, is not in default with respect to any order of any court or governmental authority or arbitration board or tribunal, delivered on the default under which would affect adversely the ability of the Owner Trustee, in its individual capacity or as Owner Trustee, to perform its obligations under the Owner Trustee AgreementsClosing Date; (g) both its chief executive office office, and the place where its records concerning the Equipment and all its interest in, to and under all documents relating to the Trust Estate, are located at in [____________], and the Owner Trustee, in its individual capacity, agrees to give the Owner Participant, the Indenture Trustee and the LesseeLessee written notice within 30 days following any relocation of said chief executive office or said place from its present location; (h) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any [_________________ ] state or local governmental authority or agency or any United States federal governmental authority or agency regulating the banking or trust powers of the Owner Trustee, in its individual capacity, is required for the execution and delivery of, or the carrying out by, the Owner Trustee in its individual capacity or as Owner Trustee, as the case may be, of any of the transactions contemplated hereby or by the Trust Agreement or of any of the transactions contemplated by any of the other Owner Trustee Agreements, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken; (i) on the Initial Closing Date and the Subsequent Closing Date, the Owner Trustee's right, title and interest in and to the Equipment delivered on such the Closing Date shall be free and clear of any Liens Lessor's Lien attributable to the Owner Trustee in its individual capacity except Liens created by the terms of the Operative Agreementscapacity; (j) the proceeds received by the Owner Trustee from the Owner Participant pursuant to the Trust Agreement will be administered by it in accordance with [Article IV III of the Trust Agreement]; (k) the Owner Trustee shall receive from the Lessee such title as was conveyed to it by the Lessee, subject to the rights of the Owner Trustee and the Lessee under the Lease and the security interest Lien created pursuant to the Indenture and the Indenture Supplements Supplement in respect of the Units delivered on the Initial Closing Date and the Subsequent Closing Date, and there will be no Lessor's Liens attributable to the Owner Trustee on the Equipment or any interest therein or on the Trust Estate; and (l) the Owner Trustee is not in default under any of the Owner Trustee Agreements and, to its knowledge, no Indenture Default or Indenture Event of Default has occurred and is continuing.

Appears in 1 contract

Samples: Participation Agreement (General American Railcar Corp Ii)

Representations and Warranties of the Owner Trustee. The Trust Company (except with respect to clauses (c) and (k) (to the extent applicable to the Owner Trustee in its capacity as Owner Trustee, both in its individual capacity ) below) and as Owner Trustee with respect to clauses (except that (x) the representations and warranties in Sections 3.1(a)(ic), 3.1(a)(ii), 3.1(b)(i(e) (to the extent provided therein) and 3.1(b)(iii(k) are made by (to the extent applicable to the Owner Trustee solely in its individual capacity and (y) the representations and warranties in Sections 3.1(c) and 3.1(k) are made by the Owner Trustee solely in its capacity as such)Owner Trustee) below, represents and warrants to the Owner Participant, each of the other Trustees and the Lessee, notwithstanding the provisions of Section 10.13 or any similar provision in any other Operative Agreement, that, as of the date hereof: (a) the Owner Trustee Trust Company (i) is a ___________________ Delaware banking corporation duly organized and validly existing in good standing under the laws of ________________the State of Delaware, (ii) has full corporate power and authority to carry on its business as now conducted and to enter into and perform its obligations hereunder and under the Trust Agreement and (iii) (assuming due authorization, execution and delivery of the Trust Agreement by the Owner Participant) has full power and authority, as Owner Trustee and/or, to the extent expressly provided herein or therein, in its individual capacity, to enter into and perform its obligations under each of the Owner Trustee Agreements; (i) the Owner Trustee, in its individual capacity, Trust Company has duly authorized, executed and delivered the Trust Agreement, (ii) (assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant) the Owner Trustee in its trust trustee capacity and, to the extent expressly provided therein, in its individual capacity, has duly authorized, executed and delivered each of the other Owner Trustee Agreements and, as of the Initial Closing Date and the Subsequent Closing Date, each of the Owner Trustee Agreements Equipment Notes, the Lease Supplements and the Indenture Supplements to be delivered on such the Closing Date Date, and (iii) the Trust Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, in its individual capacityTrust Company, enforceable against it in its individual capacity in accordance with its terms except as enforceability the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity; (c) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, each of the other Owner Trustee Agreements (other than the Trust Agreement) to which it is a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Owner Trustee, enforceable against it in accordance with its terms terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity; (d) neither the execution and delivery by the Owner TrusteeTrust Company, in its individual capacity or as Owner Trustee, as the case may be, of the Owner Trustee Agreements or the Equipment NotesNotes to be delivered on the Closing Date, nor the consummation by the Owner TrusteeTrust Company, in its individual capacity or as Owner Trustee, as the case may be, of any of the transactions contemplated hereby or thereby, nor the compliance by the Owner TrusteeTrust Company, in its individual capacity capacity, or as Owner Trustee, as the case - 13 - 18 may be, with any of the terms and provisions hereof and thereof, (i) requires or will require any approval of its stockholders, or approval or consent of any trustees or holders of any indebtedness or obligations of it in its individual capacity, or (ii) violates or will violate its certificate of incorporation charter documents or by-laws, or contravenes or will contravene any provision of, or constitutes or will constitute a default under, or results or will result in any breach of, any indenture, mortgage, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, license or other agreement or instrument to which the Owner Trustee in its individual capacity Trust Company is a party or by which it is bound, or result in the creation of any Lien (except for Permitted Liens upon the Units) upon the Trust Estate, or contravenes or will contravene any law, governmental rule or regulation of the United States of America or Massachusetts the State of Delaware governing the banking or trust powers of the Owner TrusteeTrust Company, or any judgment or order applicable to or binding on it; (e) there are no Taxes payable by the Owner TrusteeTrust Company, either in its individual capacity or as Owner Trustee, imposed by Massachusetts the State of Delaware or any political subdivision thereof or by the United States of America in connection with the execution and delivery by the Owner Trustee in its individual capacity of the Trust Agreement, and, in its individual capacity or as Owner Trustee, as the case may be, of this Agreement, the other Owner Trustee Agreements (other than the Trust Agreement) or the Equipment Notes to be delivered on the Closing Date solely because the Owner Trustee in its individual capacity is a trust company Delaware banking corporation with its principal place of business in Massachusetts Wilmington, Delaware and performs certain of its duties as Owner Trustee in Massachusettsthe State of Delaware; and there are no Taxes payable by the Owner TrusteeTrust Company, in its individual capacity or as Owner Trustee, as the case may be, imposed by Massachusetts the State of Delaware or any political subdivision thereof or by the United States of America in connection with the acquisition of its interest in the Equipment (other than franchise or other taxes based on or measured by any fees or compensation received by the Owner Trustee for services rendered in connection with the transactions contemplated hereby) solely because the Owner Trustee Trust Company in its individual capacity is a trust company Delaware banking corporation with its principal place of business in Massachusetts Wilmington, Delaware, and performs certain of its duties as Owner Trustee in Massachusettsthe State of Delaware; (f) there are no pending or, to its knowledge, threatened actions or proceedings against the Owner TrusteeTrust Company, either in its individual capacity or as Owner Trustee, before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would materially adversely affect the ability of the Owner TrusteeTrust Company, in its individual capacity or as Owner Trustee, as the case may be, to perform its obligations under the Trust Agreement, the other Owner Trustee Agreements or the Equipment Notes or which question the validity of any Owner Trustee Agreement or any action taken or to be taken pursuant thereto. The Owner Trustee, in its individual capacity and as Owner Trustee, is not in default with respect to any order of any court or governmental authority or arbitration board or tribunal, delivered on the default under which would affect adversely the ability of the Owner Trustee, in its individual capacity or as Owner Trustee, to perform its obligations under the Owner Trustee AgreementsClosing Date; (g) both its chief executive office office, and the place where its records concerning the Equipment and all its interest in, to and under all documents relating to the Trust Estate, are located at Wilmington, Delaware, and the Owner TrusteeTrust Company, in its individual capacity, agrees to give the Owner Participant, the Indenture Trustee and the LesseeLessee written notice within 30 days following any relocation of said chief executive office or said place from its present location; (h) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any _________________ Delaware state or local governmental authority or agency or any United States federal governmental authority or agency regulating the banking or trust powers of the Owner TrusteeTrust Company, in its individual capacity, is required for the execution and delivery of, or the carrying out by, the Owner Trustee Trust Company in its individual capacity or as Owner Trustee, as the case may be, of any of the transactions contemplated hereby or by the Trust Agreement or of any of the transactions contemplated by any of the other Owner Trustee Agreements, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken; (i) on the Initial Closing Date and the Subsequent Closing Date, the Owner Trustee's right, title and interest in and to the Equipment delivered on such the Closing Date shall be free of any Liens attributable to the Owner Trustee Trust Company in its individual capacity except Liens created by the terms of the Operative Agreementscapacity; (j) the proceeds received by the Owner Trustee from the Owner Participant pursuant to the Trust Agreement will be administered by it in accordance with Article IV III of the Trust Agreement; (k) the Owner Trustee shall receive from the Lessee such title as was conveyed to it by the Lessee, subject to the rights of the Owner Trustee and the Lessee under the Lease and the security interest created pursuant to the Indenture and the Indenture Supplements Supplement in respect of the Units delivered on the Initial Closing Date and the Subsequent Closing Date, and there will be no Lessor's Liens attributable to it on the Equipment or any interest therein or on the Trust Estate; and (l) the Owner Trustee is not in default under any of the Owner Trustee Agreements and, to its knowledge, no Indenture Default or Indenture Event of Default has occurred and is continuing.

Appears in 1 contract

Samples: Participation Agreement (Gatx Rail Corp)

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Representations and Warranties of the Owner Trustee. The Owner Trustee, both in its individual capacity and as Owner Trustee (except that (x) the representations and warranties in Sections 3.1(a)(i), 3.1(a)(ii), 3.1(b)(i) and 3.1(b)(iii) are made by the Owner Trustee solely in its individual capacity and (y) the representations and warranties in Sections 3.1(c) and 3.1(k) are made by the Owner Trustee solely in its capacity as such)Trustee, represents and warrants to the Owner Participant, each of the other Trustees and the Lesseeparties to this Agreement, notwithstanding the provisions of Section 10.13 9.9 or any similar provision in any other Operative Agreement, that, as of the date hereof: (a) the The Owner Trustee (i) Trustee, in its individual capacity, is a ___________________ national banking association duly organized and validly existing in good standing under the laws Laws of ________________the United States of America, (ii) has full corporate power and authority to carry on its business as now conducted and to enter into and perform its obligations hereunder and under the Trust Agreement and (iii) (assuming due authorization, execution and delivery of the Trust Agreement by the Owner ParticipantHolder) has full power and authority, as the Owner Trustee and/oror, to the extent expressly provided herein or therein, in its individual capacity, to enter into and perform its obligations under each of the Owner Trustee Agreements;. (ib) the The Owner Trustee, in its individual capacity, has duly authorized, executed and delivered the Trust Agreement, (ii) Agreement and (assuming the due authorization, execution and delivery of the Trust Agreement by the Owner ParticipantHolder) the Owner Trustee in its trust capacity and, to the extent expressly provided therein, in its individual capacity, has duly authorized, executed and delivered each of the other Owner Trustee Agreements and, to be delivered as of the Initial Closing Date and the Subsequent Closing Date, each of ; and the Owner Trustee Agreements to be delivered on such Closing Date and (iii) the Trust Agreement constitutes each constitute or when entered into will constitute a legal, valid and binding obligation of the Owner Trustee, in its individual capacity to the extent such Owner Trustee Agreements relate to the Owner Trustee in its individual capacity, enforceable against it in its individual capacity in accordance with its terms except as enforceability the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws Laws affecting the rights of creditors generally and by general principles of equity;. (c) assuming Assuming the due authorization, execution and delivery of the Trust Agreement by the Holders and each of the Owner ParticipantTrustee Agreements to be delivered as of the Closing Date by each of the other parties thereto, each of the other Owner Trustee Agreements to which it is a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Owner Trustee, enforceable against it the Owner Trustee, in accordance with its terms terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws Laws affecting the rights of creditors generally and by general principles of equity;. (d) neither Neither the execution and delivery by the Owner Trustee, in its individual capacity or as the Owner Trustee, as the case may be, of the Owner Trustee Agreements or the Equipment NotesAgreements, nor the consummation by the Owner Trustee, in its individual capacity or as the Owner Trustee, as the case may be, of any of the transactions contemplated hereby or thereby, nor the compliance by the Owner Trustee, in its individual capacity or as the Owner Trustee, as the case - 13 - 18 may be, with any of the terms and provisions hereof and thereof, (i) requires or will require any approval of its stockholders, or approval or consent of any trustees or holders of any indebtedness or obligations of it in its individual capacity, or (ii) violates or will violate its certificate of incorporation organizational documents or by-lawsbylaws, or contravenes or will contravene any provision of, or constitutes or will constitute a default under, or results or will result in any breach of, any indenture, mortgage, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, license or other agreement or instrument to which the Owner Trustee in its individual capacity is a party or by which it is bound, or result in the creation of any Lien (except for Permitted Liens upon the Units) upon the Trust Estate, or contravenes or will contravene any lawLaw, governmental rule or regulation of the State of Utah or of the United States of America or Massachusetts governing the banking or trust powers of the Owner Trustee, or any judgment or order applicable to or binding on it;. (e) there There are no Taxes payable by the Owner Trustee, either in its individual capacity or as the Owner Trustee, imposed by Massachusetts the State of Utah or any political subdivision thereof or by the United States of America in connection with the execution and delivery by the Owner Trustee in its individual capacity of the Trust Agreement, and, in its individual capacity or as the Owner Trustee, as the case may be, of this Agreement, Agreement or the other Owner Trustee Agreements or the Equipment Notes solely because the Owner Owners Trustee in its individual capacity is a trust company national banking association with its principal place of business in Massachusetts Salt Lake City, Utah and performs certain of its duties as the Owner Trustee in Massachusettsthe State of Utah; and there are no Taxes payable by the Owner Trustee, in its individual capacity or as the Owner Trustee, as the case may be, imposed by Massachusetts the State of Utah or any political subdivision thereof in connection with the acquisition of its interest in the Equipment (other than franchise or other taxes Taxes based on or measured by any fees or compensation received by the Owner Trustee for services rendered in connection with the transactions contemplated hereby) solely because the Owner Trustee in its individual capacity is a trust company national banking association with its principal place of business in Massachusetts Salt Lake City, Utah and performs certain of its duties as the Owner Trustee in Massachusetts;the State of Utah. (f) there There are no pending or, to its knowledge, threatened actions or proceedings against the Owner Trustee, either in its individual capacity or as the Owner Trustee, before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would materially adversely affect the ability of the Owner Trustee, in its individual capacity or as the Owner Trustee, as the case may be, to perform its obligations under the Trust Agreement, Agreement or the other Owner Trustee Agreements or the Equipment Notes or which question the validity of any Owner Trustee Agreement or any action taken or to be taken pursuant thereto. The Owner Trustee, in its individual capacity and as Owner Trustee, is not in default with respect to any order of any court or governmental authority or arbitration board or tribunal, the default under which would affect adversely the ability of the Owner Trustee, in its individual capacity or as Owner Trustee, to perform its obligations under the Owner Trustee Agreements;. (g) both its Its chief executive office office, principal place of business and the place where its records concerning the Equipment and all its interest in, to and under all documents relating to the Trust Estate, Estate are located at 79 Xxxxx Xxxx Xxxxxx, and the Owner TrusteeXxxx Xxxx Xxxx, in its individual capacity, agrees to give the Owner Participant, the Indenture Trustee and the LesseeXxxx 00000. (h) no No consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any _________________ Utah state or local governmental authority or agency or any United States federal governmental authority or agency regulating the banking or trust powers of the Owner Trustee, in its individual capacity, is required for the execution and delivery of, or the carrying out by, the Owner Trustee in its individual capacity or as the Owner Trustee, as the case may be, of any of the transactions contemplated hereby or by the Trust Agreement or of any of the transactions contemplated by any of the other Owner Trustee Agreements, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken; (i) on the Initial Closing Date and the Subsequent Closing Date, the Owner Trustee's right, title and interest in and to the Equipment delivered on such Closing Date shall be free of any Liens attributable to the Owner Trustee in its individual capacity except Liens created by the terms of the Operative Agreements; (j) the proceeds received by the Owner Trustee from the Owner Participant pursuant to the Trust Agreement will be administered by it in accordance with Article IV of the Trust Agreement; (k) the Owner Trustee shall receive from the Lessee such title as was conveyed to it by the Lessee, subject to the rights of the Owner Trustee and the Lessee under the Lease and the security interest created pursuant to the Indenture and the Indenture Supplements in respect of the Units delivered on the Initial Closing Date and the Subsequent Closing Date; and (l) the Owner Trustee is not in default under any of the Owner Trustee Agreements and, to its knowledge, no Indenture Default or Indenture Event of Default has occurred and is continuing.

Appears in 1 contract

Samples: Participation Agreement (Apple South Inc)

Representations and Warranties of the Owner Trustee. The Owner Trustee, both in its individual capacity and as Owner Trustee (except that (x) the representations and warranties in Sections 3.1(a)(i), 3.1(a)(ii), 3.1(b)(i) and 3.1(b)(iii) are made by the Owner Trustee solely in its individual capacity and (y) the representations and warranties in Sections 3.1(c) and 3.1(k) are made by the Owner Trustee solely in its capacity as such)Trustee, represents and warrants to the Owner Participant, each of the other Trustees and the Lesseeparties to this Agreement, notwithstanding the provisions of Section 10.13 10.9 or any similar provision in any other Operative Agreement, that, as of the date hereof: (a) the The Owner Trustee (i) Trustee, in its individual capacity, is a ___________________ national banking association duly organized and validly existing in good standing under the laws Laws of ________________the United States of America, (ii) has full corporate power and authority to carry on its business as now conducted and to enter into and perform its obligations hereunder and under the Trust Agreement and (iii) (assuming due authorization, execution and delivery of the Trust Agreement by the Owner ParticipantHolders) has full power and authority, as the Owner Trustee and/or, to the extent expressly provided herein or therein, in its individual capacity, to enter into and perform its obligations under each of the Owner Trustee Agreements;. (ib) the The Owner Trustee, in its individual capacity, has duly authorized, executed and delivered the Trust Agreement, (ii) Agreement and (assuming the due authorization, execution and delivery of the Trust Agreement by the Owner ParticipantHolders) the Owner Trustee in its trust capacity and, to the extent expressly provided therein, in its individual capacity, has duly authorized, executed and delivered each of the other Owner Trustee Agreements and, to be delivered as of the Initial Closing Date and the Subsequent Closing Date, each of ; and the Owner Trustee Agreements to be delivered on such Closing Date and (iii) the Trust Agreement constitutes each constitute or when entered into will constitute a legal, valid and binding obligation of the Owner Trustee, in its individual capacity to the extent such Owner Trustee Agreements relate to the Owner Trustee in its individual capacity, enforceable against it in its individual capacity in accordance with its terms except as enforceability the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity; (c) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, each of the other Owner Trustee Agreements to which it is a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Owner Trustee, enforceable against it in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity; (d) neither the execution and delivery by the Owner Trustee, in its individual capacity or as Owner Trustee, as the case may be, of the Owner Trustee Agreements or the Equipment Notes, nor the consummation by the Owner Trustee, in its individual capacity or as Owner Trustee, as the case may be, of any of the transactions contemplated hereby or thereby, nor the compliance by the Owner Trustee, in its individual capacity or as Owner Trustee, as the case - 13 - 18 may be, with any of the terms and provisions hereof and thereof, (i) requires or will require any approval of its stockholders, or approval or consent of any trustees or holders of any indebtedness or obligations of it in its individual capacity, or (ii) violates or will violate its certificate of incorporation or by-laws, or contravenes or will contravene any provision of, or constitutes or will constitute a default under, or results or will result in any breach of, any indenture, mortgage, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, license or other agreement or instrument to which the Owner Trustee in its individual capacity is a party or by which it is bound, or result in the creation of any Lien (except for Permitted Liens upon the Units) upon the Trust Estate, or contravenes or will contravene any law, governmental rule or regulation of the United States of America or Massachusetts governing the banking or trust powers of the Owner Trustee, or any judgment or order applicable to or binding on it; (e) there are no Taxes payable by the Owner Trustee, either in its individual capacity or as Owner Trustee, imposed by Massachusetts or any political subdivision thereof or by the United States of America in connection with the execution and delivery by the Owner Trustee in its individual capacity of the Trust Agreement, and, in its individual capacity or as Owner Trustee, as the case may be, of this Agreement, the other Owner Trustee Agreements or the Equipment Notes solely because the Owner Trustee in its individual capacity is a trust company with its principal place of business in Massachusetts and performs certain of its duties as Owner Trustee in Massachusetts; and there are no Taxes payable by the Owner Trustee, in its individual capacity or as Owner Trustee, as the case may be, imposed by Massachusetts or any political subdivision thereof in connection with the acquisition of its interest in the Equipment (other than franchise or other taxes based on or measured by any fees or compensation received by the Owner Trustee for services rendered in connection with the transactions contemplated hereby) solely because the Owner Trustee in its individual capacity is a trust company with its principal place of business in Massachusetts and performs certain of its duties as Owner Trustee in Massachusetts; (f) there are no pending or, to its knowledge, threatened actions or proceedings against the Owner Trustee, either in its individual capacity or as Owner Trustee, before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would materially adversely affect the ability of the Owner Trustee, in its individual capacity or as Owner Trustee, as the case may be, to perform its obligations under the Trust Agreement, the other Owner Trustee Agreements or the Equipment Notes or which question the validity of any Owner Trustee Agreement or any action taken or to be taken pursuant thereto. The Owner Trustee, in its individual capacity and as Owner Trustee, is not in default with respect to any order of any court or governmental authority or arbitration board or tribunal, the default under which would affect adversely the ability of the Owner Trustee, in its individual capacity or as Owner Trustee, to perform its obligations under the Owner Trustee Agreements; (g) both its chief executive office and the place where its records concerning the Equipment and all its interest in, to and under all documents relating to the Trust Estate, are located at , and the Owner Trustee, in its individual capacity, agrees to give the Owner Participant, the Indenture Trustee and the Lessee (h) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any _________________ or local governmental authority or agency or any United States federal governmental authority or agency regulating the banking or trust powers of the Owner Trustee, in its individual capacity, is required for the execution and delivery of, or the carrying out by, the Owner Trustee in its individual capacity or as Owner Trustee, as the case may be, of any of the transactions contemplated hereby or by the Trust Agreement or of any of the transactions contemplated by any of the other Owner Trustee Agreements, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken; (i) on the Initial Closing Date and the Subsequent Closing Date, the Owner Trustee's right, title and interest in and to the Equipment delivered on such Closing Date shall be free of any Liens attributable to the Owner Trustee in its individual capacity except Liens created by the terms of the Operative Agreements; (j) the proceeds received by the Owner Trustee from the Owner Participant pursuant to the Trust Agreement will be administered by it in accordance with Article IV of the Trust Agreement; (k) the Owner Trustee shall receive from the Lessee such title as was conveyed to it by the Lessee, subject to the rights of the Owner Trustee and the Lessee under the Lease and the security interest created pursuant to the Indenture and the Indenture Supplements in respect of the Units delivered on the Initial Closing Date and the Subsequent Closing Date; and (l) the Owner Trustee is not in default under any of the Owner Trustee Agreements and, to its knowledge, no Indenture Default or Indenture Event of Default has occurred and is continuing.

Appears in 1 contract

Samples: Participation Agreement (Coca Cola Bottling Co Consolidated /De/)

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