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