Representations and Warranties of Transferee. Transferee represents and warrants to Transferor and to the other parties to the Participation Agreement that as of the Effective Time: (a) Transferee is a corporation duly organized, validly existing and in good standing under the laws of the State of [ ], has the full corporate power, authority and legal right to carry on its business as now conducted, and has full corporate power, authority and legal right to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated hereby and in the other Operative Agreements (the "Transactions"); (b) Transferee has full corporate power, authority and legal right to execute, deliver and enter into this Agreement and the other Operative Agreements and full corporate power and authority to perform its obligations thereunder, and such execution, delivery and performance do not and will not contravene any applicable law or any order of any governmental authority applicable to or binding on the Transferee, or contravene the provisions of, or constitute a default under, or result in the creation of any Lien upon the property of the Transferee under, its articles of incorporation or by-laws or any material indenture, mortgage, contract or other agreement or instrument to which the Transferee is a party or by which it or any of its property may be bound or affected; (c) the execution, delivery and performance of this Agreement by the Transferee (i) has been duly authorized by all necessary corporate action and (ii) does not require any approval of the shareholders of the Transferee or any approval or consent of, or notice to, any trustee or holders of any indebtedness or obligation of the Transferee, except for such approvals and consents as have already been obtained; (d) this Agreement has been duly executed and delivered by the Transferee, and constitutes the legal, valid and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms, except as 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; (e) there are no proceedings or actions pending or, to the knowledge of the Transferee, threatened against the Transferee before any governmental authority in which there is a reasonable probability of an adverse determination that individually or in the aggregate would materially and adversely impair the ability of the Transferee to perform its obligations under this Agreement or the Operative Agreements, or which involve the Transactions or question the validity of any Operative Agreement to which the Owner Participant is a party or any action taken or to be taken pursuant thereto; and the Transferee is not in default with respect to any order of any governmental authority which involves the Transactions or the default under which would materially and adversely affect the ability of the Transferee to perform its obligations under this Agreement or any of the Operative Agreements; (f) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any governmental authority is required under any law for the execution and delivery by the Transferee of this Agreement, or the carrying out by the Transferee of any of the Transactions, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken; (g) the Lessor's Estate is free of any Lessor's Liens attributable to the Transferee; (h) the Transferee, upon execution of this Agreement, will not be in default under any of the Operative Agreements; (i) no part of the funds to be used by it to acquire the interests acquired by the Owner Participant under the Participation Agreement constitutes assets (within the meaning of ERISA and any applicable rules and regulations) of any employee benefit plan subject to Title I of ERISA or of any plan or individual retirement account subject to Section 4975 of the Code; (j) Transferee is a "U.S. Person" as defined in Section 7701(a)(30) of the Code and is not a tax resident of another country and if it shall at any time cease to be such a "U.S. Person" or shall become a tax resident of another country, it shall furnish to the Agent and each Loan Certificate Holder an indemnity, in form and substance reasonably satisfactory to such Loan Certificate Holder, for any Taxes that may be imposed on such Holder as a result of its failure to be such a "U.S. Person" or as a result of its being a tax resident of another country, and it shall be personally liable for any debt service to the extent that the receipt of rentals is reduced by reason of any withholding Taxes that result from such failure to be such a "U.S. Person" or from being a tax resident of another country;
Appears in 1 contract
Representations and Warranties of Transferee. The Transferee represents and warrants to Transferor and to the other parties to the Participation Agreement that as of the Effective TimeLoctite that:
(a) Transferee is a corporation duly organized, validly existing and in good standing under the laws of the State of [ ], it has the full requisite power and authority (corporate poweror otherwise) to execute and deliver this Agreement, authority and legal right to carry on out its business as now conducted, and has full corporate power, authority and legal right to execute, deliver and perform this Agreement obligations hereunder and to enter into and carry out consummate each of the transactions contemplated hereby and in the other Operative Agreements (the "Transactions")hereby;
(b) Transferee has full corporate power, authority and legal right to execute, deliver and enter into this Agreement and the other Operative Agreements and full corporate power and authority to perform its obligations thereunder, and such execution, delivery and performance do not and will not contravene any applicable law or any order of any governmental authority applicable to or binding on the Transferee, or contravene the provisions of, or constitute a default under, or result in the creation of any Lien upon the property of the Transferee under, its articles of incorporation or by-laws or any material indenture, mortgage, contract or other agreement or instrument to which the Transferee is a party or by which it or any of its property may be bound or affected;
(c) the execution, delivery and performance of this Agreement by and the Transferee (i) has consummation of each of the transactions contemplated hereby have been duly authorized by all its Board of Directors (or other relevant corporate body), and no other corporate proceedings on its part are necessary corporate action and (ii) does not require any approval of to authorize this Agreement or to consummate the shareholders of the Transferee or any approval or consent of, or notice to, any trustee or holders of any indebtedness or obligation of the Transferee, except for such approvals and consents as have already been obtainedtransactions so contemplated;
(dc) this Agreement has been duly executed and delivered by the Transferee, it and constitutes the legal, a valid and binding obligation of the Transfereeit, enforceable against the Transferee it in accordance with its respective terms, except as to the same extent such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to the enforcement of creditors' rights of creditors generally and by is subject to the general principles of equity;
(d) neither the execution, delivery and performance of this Agreement nor the consummation by it of the transactions contemplated hereby nor compliance by it with any of the provisions hereof will (i) conflict with or result in any breach or violation of any provisions of its governing organizational documents, (ii) require on its part any filing with, notification to, or permit, authorization, consent or approval of, any governmental body or authority or any other entity (other than filings by the Transferee with the Securities and Exchange Commission under the Exchange Act) or (iii) constitute (with or without notice or lapse of time or both) a breach, violation or default, create a lien or other encumbrance or give rise to any right of renegotiation or termination, amendment, cancellation, acceleration or prepayment under (A) any material agreement or instrument to which it is a party or by which any of its material properties or assets may be bound or subject or (B) any order, writ, injunction, decree, statute, rule or regulation, governmental permit or license applicable to it or any of its material properties or assets;
(e) there are no proceedings A true, and complete copy of the Acquisition Agreement, without amendment or actions pending ormodification, is attached hereto as Exhibit A; and
(f) after giving effect to the knowledge Proposed Sale Transaction pursuant to the Acquisition Agreement, (i) the Transferee, together with all Affiliates and Associates of the Transferee, threatened against will be the Transferee before any governmental authority in which there is a reasonable probability Beneficial Owner of an adverse determination that individually or [insert number] Common Shares and (ii) [in the aggregate would materially and adversely impair case of a Transfer from the ability of the Xxxxxxx Family Group or a Permitted Transferee to perform the Transferee, the Transferee, together with its obligations under this Agreement Affiliates or the Operative AgreementsAssociates, or which involve the Transactions or question the validity of will not beneficially own any Operative Agreement to which the Owner Participant is a party or any action taken or to be taken pursuant thereto; and the Transferee is not in default with respect to any order of any governmental authority which involves the Transactions or the default under which would materially and adversely affect the ability of the Transferee to perform its obligations under this Agreement or any of the Operative Agreements;
(f) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any governmental authority is required under any law for the execution and delivery by the Transferee of this Agreement, or the carrying out by the Transferee of any of the TransactionsCommon Shares, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken;
(g) the Lessor's Estate is free Common Shares transferred by the Transferor to the Transferee in the Proposed Sale Transaction] [in the case of any Lessor's Liens attributable a Transfer from Henkel to the Transferee;
(h) , the Transferee, upon execution of this Agreementtogether with its Affiliates and Associates, will not be in default under any beneficially own a percentage of the Operative Agreements;
(i) no part then outstanding Common Shares in excess of the funds lesser of (A) the Henkel Percentage in effect immediately prior to the Proposed Sale Transaction and (B) the sum of 0.3% of the then outstanding Common Shares and the percentage of the then outstanding Common Shares to be used transferred by it to acquire the interests acquired by the Owner Participant under the Participation Agreement constitutes assets (within the meaning of ERISA and any applicable rules and regulations) of any employee benefit plan subject to Title I of ERISA or of any plan or individual retirement account subject to Section 4975 of the Code;
(j) Transferee is a "U.S. Person" as defined in Section 7701(a)(30) of the Code and is not a tax resident of another country and if it shall at any time cease to be such a "U.S. Person" or shall become a tax resident of another country, it shall furnish Henkel to the Agent and each Loan Certificate Holder an indemnity, Transferee in form and substance reasonably satisfactory to such Loan Certificate Holder, for any Taxes that may be imposed on such Holder as a result of its failure to be such a "U.S. Person" or as a result of its being a tax resident of another country, and it shall be personally liable for any debt service to the extent that the receipt of rentals is reduced by reason of any withholding Taxes that result from such failure to be such a "U.S. Person" or from being a tax resident of another country;Proposed Sale Transaction].
Appears in 1 contract
Representations and Warranties of Transferee. The Transferee represents and warrants to Transferor and to the other parties to the Participation Agreement that as of the Effective TimeLoctite that:
(a) Transferee is a corporation duly organized, validly existing and in good standing under the laws of the State of [ ], it has the full requisite power and authority (corporate poweror otherwise) to execute and deliver this Agreement, authority and legal right to carry on out its business as now conducted, and has full corporate power, authority and legal right to execute, deliver and perform this Agreement obligations hereunder and to enter into and carry out consummate each of the transactions contemplated hereby and in the other Operative Agreements (the "Transactions")hereby;
(b) Transferee has full corporate power, authority and legal right to execute, deliver and enter into this Agreement and the other Operative Agreements and full corporate power and authority to perform its obligations thereunder, and such execution, delivery and performance do not and will not contravene any applicable law or any order of any governmental authority applicable to or binding on the Transferee, or contravene the provisions of, or constitute a default under, or result in the creation of any Lien upon the property of the Transferee under, its articles of incorporation or by-laws or any material indenture, mortgage, contract or other agreement or instrument to which the Transferee is a party or by which it or any of its property may be bound or affected;
(c) the execution, delivery and performance of this Agreement by and the Transferee (i) has consummation of each of the transactions contemplated hereby have been duly authorized by all its Board of Directors (or other relevant corporate body), and no other corporate proceedings on its part are necessary corporate action and (ii) does not require any approval of to authorize this Agreement or to consummate the shareholders of the Transferee or any approval or consent of, or notice to, any trustee or holders of any indebtedness or obligation of the Transferee, except for such approvals and consents as have already been obtainedtransactions so contemplated;
(dc) this Agreement has been duly executed and delivered by the Transferee, it and constitutes the legal, a valid and binding obligation of the Transfereeit, enforceable against the Transferee it in accordance with its respective terms, except as to the same extent such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to the enforcement of creditors' rights of creditors generally and by is subject to the general principles of equity;
(ed) there are no proceedings or actions pending orneither the execution, to delivery and performance of this Agreement nor the knowledge consummation by it of the Transfereetransactions contemplated hereby nor compliance by it with any of the provisions hereof will (i) conflict with or result in any breach or violation of any provisions of its governing organizational documents, threatened against (ii) require on its part any filing with, notification to, or permit, authorization, consent or approval of, any governmental body or authority or any other entity (other than filings by the Transferee before with the Securities and Exchange Commission under the Exchange Act) or (iii) constitute (with or without notice or lapse of time or both) a breach, violation or default, create a lien or other encumbrance or give rise to any governmental authority in which there is a reasonable probability right of an adverse determination that individually renegotiation or in the aggregate would materially and adversely impair the ability of the Transferee to perform its obligations termination, amendment, cancellation, acceleration or prepayment under this Agreement (A) any material agreement or the Operative Agreements, or which involve the Transactions or question the validity of any Operative Agreement instrument to which the Owner Participant it is a party or by which any action taken of its material properties or assets may be bound or subject or (B) any order, writ, injunction, decree, statute, rule or regulation, governmental permit or license applicable to be taken pursuant thereto; and the Transferee is not in default with respect to any order of any governmental authority which involves the Transactions or the default under which would materially and adversely affect the ability of the Transferee to perform its obligations under this Agreement it or any of the Operative Agreementsits material properties or assets;
(f) no consent, approval, order or authorization of, after giving of notice to, or registration with, or taking of any other action in respect of, any governmental authority is required under any law for effect to the execution and delivery by Proposed Sale Transaction pursuant to the Transferee of this Acquisition Agreement, or the carrying out by the Transferee of any of the Transactions, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken;
(g) the Lessor's Estate is free of any Lessor's Liens attributable to the Transferee;
(hi) the Transferee, upon execution together with all Affiliates and Associates of this Agreementthe Transferee, will be the Beneficial Owner of [insert number] Common Shares and (ii) [in the case of a Transfer from the Kriexxx Xxxily Group or a Permitted Transferee to the Transferee, the Transferee, together with its Affiliates or Associates, will not be beneficially own any Common Shares, other than the Common Shares transferred by the Transferor to the Transferee in default under any the Proposed Sale Transaction] [in the case of a Transfer from Henkel to the Transferee, the Transferee, together with its Affiliates and Associates, will not beneficially own a percentage of the Operative Agreements;
(i) no part then outstanding Common Shares in excess of the funds lesser of (A) the Henkel Percentage in effect immediately prior to the Proposed Sale Transaction and (B) the sum of 0.3% of the then outstanding Common Shares and the percentage of the then outstanding Common Shares to be used transferred by it to acquire the interests acquired by the Owner Participant under the Participation Agreement constitutes assets (within the meaning of ERISA and any applicable rules and regulations) of any employee benefit plan subject to Title I of ERISA or of any plan or individual retirement account subject to Section 4975 of the Code;
(j) Transferee is a "U.S. Person" as defined in Section 7701(a)(30) of the Code and is not a tax resident of another country and if it shall at any time cease to be such a "U.S. Person" or shall become a tax resident of another country, it shall furnish Henkel to the Agent and each Loan Certificate Holder an indemnity, Transferee in form and substance reasonably satisfactory to such Loan Certificate Holder, for any Taxes that may be imposed on such Holder as a result of its failure to be such a "U.S. Person" or as a result of its being a tax resident of another country, and it shall be personally liable for any debt service to the extent that the receipt of rentals is reduced by reason of any withholding Taxes that result from such failure to be such a "U.S. Person" or from being a tax resident of another country;Proposed Sale Transaction].
Appears in 1 contract
Samples: Rights Agreement (Loctite Corp)
Representations and Warranties of Transferee. Transferee hereby represents and warrants to the Transferor Parties that each of the following is true and to the other parties to the Participation Agreement that correct as of the Effective TimeClosing Date:
(a) Transferee is a corporation duly organized, validly existing and in good standing under in the laws jurisdiction of the State of [ ], its formation.
(b) Transferee has the full corporate power, authority and legal right to carry on its business as now conducted, and has full corporate power, authority and legal right to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated hereby and in the other Operative Agreements (the "Transactions");Agreement.
(bc) The Transferee has full corporate powerduly authorized, authority executed and legal right to execute, deliver and enter into delivered this Agreement and, assuming the due authorization, execution and delivery by the __________ Parties of this Agreement, this Agreement constitutes the legal, valid and binding agreement of the Transferee, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, liquidation, receivership, moratorium and other Operative Agreements laws relating to or affecting the enforcement of creditors’ rights generally and full corporate power and authority to perform its obligations thereunderby general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(d) No consent, and such approvals, authorizations or orders of, registration or filing with, or notice to, any court or governmental agency or body is required for the execution, delivery and performance do not by Transferee of, or compliance by Transferee with, this Agreement or the consummation of the transactions contemplated hereby.
(e) The execution and delivery of this Agreement, and the performance by the Transferee of its obligations hereunder, will not contravene conflict with any applicable provision of any law or any order regulation to which the Transferee is subject, conflict with or otherwise violate the organizational documents of any governmental authority applicable to the Transferee or binding on the Transferee, conflict with or contravene the provisions of, result in a breach of or constitute a default under, or result in the creation of any Lien upon the property of the Transferee underterms, its articles conditions or provisions of incorporation or by-laws or any material indentureagreement, mortgagecontract, contract or other agreement indenture or instrument to which the Transferee is a party or by which it is bound or any of its property may be bound order or affected;
(c) decree applicable to the executionTransferee, delivery and performance of this Agreement by in any manner that would have an adverse effect on the Transferee (i) has been duly authorized by all necessary corporate action and (ii) does not require any approval of the shareholders ability of the Transferee or any approval or consent of, or notice to, any trustee or holders of any indebtedness or obligation of the Transferee, except for such approvals and consents as have already been obtained;to perform its obligations hereunder.
(df) this Agreement has been duly executed and delivered by the Transferee, and constitutes the legal, valid and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms, except as 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;is not a Prohibited Person.
(eg) there are no proceedings No claim or actions litigation is pending or, to the knowledge of the Transferee, threatened against the Transferee before any governmental authority in which there is a reasonable probability of an adverse determination that individually or in the aggregate would materially and adversely impair the ability of the Transferee to perform prohibit its obligations under entering into this Agreement or the Operative Agreements, or which involve the Transactions or question the validity of any Operative Agreement to which the Owner Participant is a party or any action taken or to be taken pursuant thereto; and the Transferee is not in default with respect to any order of any governmental authority which involves the Transactions or the default under which would materially and adversely affect the ability of performance by the Transferee to perform of its obligations under this Agreement or any of the Operative Agreements;Agreement.
(fh) no consentTransferee is not insolvent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any governmental authority is required under any law for and the execution and delivery of this Agreement and the performance by the Transferee of this Agreement, or the carrying out by the Transferee of any of the Transactions, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken;
(g) the Lessor's Estate is free of any Lessor's Liens attributable to the Transferee;
(h) the Transferee, upon execution of this Agreement, its obligations hereunder will not be in default under any of the Operative Agreements;render Transferee insolvent.
(i) There are no uncured defaults, breaches, violations or events of default or any facts or circumstances which, with the giving of notice or the passage of time, or both, will or would constitute a default, breach, violation or event of default on the part of the funds to be used by it to acquire the interests acquired by the Owner Participant Transferee under the Participation Operating Agreement constitutes assets (within or the meaning of ERISA and any applicable rules and regulations) of any employee benefit plan subject to Title I of ERISA or of any plan or individual retirement account subject to Section 4975 of the Code;Purchase Agreement.
(j) Transferee is a "U.S. Person" as defined in Section 7701(a)(30) has performed all of the Code covenants, undertakings and is not a tax resident of another country and if it shall at any time cease agreements required to be performed by such a "U.S. Person" party under the Purchase Agreement on or shall become a tax resident of another country, it shall furnish to before the Agent and each Loan Certificate Holder an indemnity, in form and substance reasonably satisfactory to such Loan Certificate Holder, for any Taxes that may be imposed on such Holder as a result of its failure to be such a "U.S. Person" or as a result of its being a tax resident of another country, and it shall be personally liable for any debt service to the extent that the receipt of rentals is reduced by reason of any withholding Taxes that result from such failure to be such a "U.S. Person" or from being a tax resident of another country;Closing Date.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (BRT Apartments Corp.)
Representations and Warranties of Transferee. Transferee represents and warrants to Transferor and to the other parties to the Participation Agreement that as of the Effective Time:
(a) Transferee is a corporation duly organized, validly existing and in good standing under the laws of the State of [ ], has the full corporate power, authority and legal right to carry on its business as now conducted, and has full corporate power, authority and legal right to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated hereby and in the other Operative Agreements (the "Transactions");
(b) Transferee has full corporate power, authority and legal right to execute, deliver and enter into this Agreement and the other Operative Agreements and full corporate power and authority to perform its obligations thereunder, and such execution, delivery and performance do not and will not contravene any applicable law or any order of any governmental authority applicable to or binding on the Transferee, or contravene the provisions of, or constitute a default under, or result in the creation of any Lien upon the property of the Transferee under, its articles of incorporation or by-laws or any material indenture, mortgage, contract or other agreement or instrument to which the Transferee is a party or by which it or any of its property may be bound or affected;
(c) the execution, delivery and performance of this Agreement by the Transferee (i) has been duly authorized by all necessary corporate action and (ii) does not require any approval of the shareholders of the Transferee or any approval or consent of, or notice to, any trustee or holders of any indebtedness or obligation of the Transferee, except for such approvals and consents as have already been obtained;
(d) this Agreement has been duly executed and delivered by the Transferee, and constitutes the legal, valid and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms, except as 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;
(e) there are no proceedings or actions pending or, to the knowledge of the Transferee, threatened against the Transferee before any governmental authority in which there is a reasonable probability of an adverse determination that individually or in the aggregate would materially and adversely impair the ability of the Transferee to perform its obligations under this Agreement or the Operative Agreements, or which involve the Transactions or question the validity of any Operative Agreement to which the Owner Participant is a party or any action taken or to be taken pursuant thereto; and the Transferee is not in default with respect to any order of any governmental authority which involves the Transactions or the default under which would materially and adversely affect the ability of the Transferee to perform its obligations under this Agreement or any of the Operative Agreements;
(f) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any governmental authority is required under any law for the execution and delivery by the Transferee of this Agreement, or the carrying out by the Transferee of any of the Transactions, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken;
(g) the Lessor's Estate is free of any Lessor's Liens attributable to the Transferee;
(h) the Transferee, upon execution of this Agreement, will not be in default under any of the Operative Agreements;
(i) no part of the funds to be used by it to acquire the interests acquired by the Owner Participant under the Participation Agreement constitutes assets (within the meaning of ERISA and any applicable rules and regulations) of any employee benefit plan subject to Title I of ERISA or of any plan or individual retirement account subject to Section 4975 of the Code;
(j) Transferee is a "U.S. Person" as defined in Section 7701(a)(30) of the Code and is not a tax resident of another country and if it shall at any time cease to be such a "U.S. Person" or shall become a tax resident of another country, it shall furnish to the Agent and each Loan Certificate Holder an indemnity, in form and substance reasonably satisfactory to such Loan Certificate Holder, for any Taxes that may be imposed on such Holder as a result of its failure to be such a "U.S. Person" or as a result of its being a tax resident of another country, and it shall be personally liable for any debt service to the extent that the receipt of rentals is reduced by reason of any withholding Taxes that result from such failure to be such a "U.S. Person" or from being a tax resident of another country;
Appears in 1 contract
Representations and Warranties of Transferee. Transferee represents and warrants to Transferor and to the other parties to the Participation Agreement that as of the Effective Time:
(a) Transferee is a corporation duly organized, validly existing and in good standing under the laws of the State of [ ], has the full corporate power, authority and legal right to carry on its business as now conducted, and has full corporate power, authority and legal right to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated hereby and in the other Operative Agreements (the "Transactions");
(b) Transferee has full corporate power, authority and legal right to execute, deliver and enter into this Agreement and the other Operative Agreements and full corporate power and authority to perform its obligations thereunder, and such execution, delivery and performance do not and will not contravene any applicable law or any order of any governmental authority applicable to or binding on the Transferee, or contravene the provisions of, or constitute a default under, or result in the creation of any Lien upon the property of the Transferee under, its articles of incorporation or by-laws or any material indenture, mortgage, contract or other agreement or instrument to which the Transferee is a party or by which it or any of its property may be bound or affected;
(c) the execution, delivery and performance of this Agreement by the Transferee (i) has been duly authorized by all necessary corporate action and (ii) does not require any approval of the shareholders of the Transferee or any approval or consent of, or notice to, any trustee or holders of any indebtedness or obligation of the Transferee, except for such approvals and consents as have already been obtained;
(d) this Agreement has been duly executed and delivered by the Transferee, and constitutes the legal, valid and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms, except as 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;
(e) there are no proceedings or actions pending or, to the knowledge of the Transferee, threatened against the Transferee before any governmental authority in which there is a reasonable probability of an adverse determination that individually or in the aggregate would materially and adversely impair the ability of the Transferee to perform its obligations under this Agreement or the Operative Agreements, or which involve the Transactions or question the validity of any Operative Agreement to which the Owner Participant is a party or any action taken or to be taken pursuant thereto; and the Transferee is not in default with respect to any order of any governmental authority which involves the Transactions or the default under which would materially and adversely affect the ability of the Transferee to perform its obligations under this Agreement or any of the Operative Agreements;
(f) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any governmental authority is required under any law for the execution and delivery by the Transferee of this Agreement, or the carrying out by the Transferee of any of the Transactions, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken;
(g) the Lessor's Estate is free of any Lessor's Liens attributable to the Transferee;
(h) the Transferee, upon execution of this Agreement, will not be in default under any of the Operative Agreements;
(i) no part of the funds to be used by it to acquire the interests acquired by the Owner Participant under the Participation Agreement constitutes assets (within the meaning of ERISA and any applicable rules and regulations) of any employee benefit plan subject to Title I of ERISA or of any plan or individual retirement account subject to Section 4975 of the Code;
(j) Transferee is a "U.S. Person" as defined in Section 7701(a)(30) of the Code and is not a tax resident of another country and if it shall at any time cease to be such a "U.S. Person" or shall become a tax resident of another country, it shall furnish to the Agent and each Loan Certificate Holder an indemnity, in form and substance reasonably satisfactory to such Loan Certificate Holder, for any Taxes that may be imposed on such Holder as a result of its failure to be such a "U.S. Person" or as a result of its being a tax resident of another country, and it shall be personally liable for any debt service to the extent that the receipt of rentals is reduced by reason of any withholding Taxes that result from such failure to be such a "U.S. Person" or from being a tax resident of another country;
Appears in 1 contract
