FEDERAL INCOME TAX PURPOSES
SHALL BE PROHIBITED HEREUNDER UNLESS AND EXCEPT TO THE EXTENT PERMITTED IN
SECTION 23.3(D).
(B)
PERMITTED TRANSFERS.
SUBJECT TO THE TERMS OF SECTION 23.3(D), THE
HOLDER OF ANY DIRECT OR INDIRECT INTEREST IN LESSOR MAY TRANSFER ALL OF SUCH
HOLDER'S INTERESTS IN LESSOR AND LESSOR MAY TRANSFER THE LESSOR'S INTERESTS,
THIS LEASE AND THE OTHER DOCUMENTS RELATING THERETO, ON THE FOLLOWING TERMS AND
CONDITIONS (EACH OF WHICH SHALL BE SATISFIED PRIOR TO THE EFFECTIVE DATE OF THE
TRANSFER):
(I)
IF SUCH TRANSFER IS A TRANSFER BY LESSOR OF LESSOR'S INTERESTS,
(A)
LESSOR SHALL HAVE COMPLIED WITH SECTION 23.4, TO THE EXTENT
APPLICABLE;
(B)
THE TRANSFEREE MUST BE A PERSON THAT WILL SATISFY THE
SPECIAL-PURPOSE COVENANTS AND AS TO WHICH EACH OF THE REPRESENTATIONS AND
WARRANTIES SET FORTH HEREIN (THE "COVENANTS AND OBLIGATIONS OF LESSOR") SHALL BE
TRUE WITH SUCH MODIFICATIONS AS MAY BE APPROPRIATE TO REFLECT THE IDENTITY OF
THE LESSOR WITHOUT ANY MATERIAL
37
ADVERSE EFFECT ON LESSEE (AND THE TRANSFEREE SHALL MAKE SUCH REPRESENTATIONS AND
WARRANTIES TO LESSEE IMMEDIATELY PRIOR TO THE EFFECTIVENESS OF THE CLOSING OF
SUCH TRANSFER);
(C)
THE TRANSFEREE SHALL ENTER INTO AN AGREEMENT IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO LESSEE ASSUMING ALL OF THE TRANSFEROR'S OBLIGATIONS
UNDER THIS LEASE AND, IF SUCH TRANSFER IS OF THE REMAINDER INTEREST, THE
TRANSFEROR'S OBLIGATIONS UNDER THE RECOGNITION AGREEMENT); AND
(D)
THE TRANSFEREE SHALL BE A "UNITED STATES PERSON" AS SUCH TERM IS
DEFINED IN SECTION 7701(A)(30) OF THE CODE AND THE APPLICABLE REGULATIONS
THEREUNDER AND SHALL HAVE DELIVERED TO LESSEE COMPLETED AND EXECUTED FORMS
REQUIRED UNDER SECTION 20.2(B).
(II)
NO SUCH TRANSFER SHALL CAUSE LESSOR TO BE A CA COMPETITOR OR AN
AFFILIATE OF A CA COMPETITOR;
(III)
SUCH TRANSFER SHALL BE IN COMPLIANCE WITH APPLICABLE LAWS AND
RESTRICTIONS AND SHALL NOT CREATE A RELATIONSHIP WHICH WOULD VIOLATE APPLICABLE
LAWS AND RESTRICTIONS;
(IV)
SUBJECT TO SECTION 23.3(F), THE TRANSFEROR SHALL HAVE GIVEN AT
LEAST FIFTEEN (15) DAYS' PRIOR NOTICE (OR, IN THE CASE OF A RELATED PARTY
TRANSFER (AS DEFINED BELOW), TEN (10) DAYS' PRIOR NOTICE) TO LESSEE OF SUCH
TRANSFER, WHICH NOTICE SHALL CONTAIN SUCH INFORMATION AND EVIDENCE AS SHALL BE
REASONABLY NECESSARY TO ESTABLISH COMPLIANCE WITH THIS SECTION 23.3 (INCLUDING
THE NAME OF THE PROPOSED TRANSFEREE AND EACH OF ITS FIVE PERCENT (5%) (OR
GREATER) OWNERS, AND THE DATE ON WHICH SUCH TRANSFER IS PROPOSED TO BECOME
EFFECTIVE) AND SHALL BE ACCOMPANIED BY THE PROPOSED FORM OF CERTIFICATE AND
LEGAL OPINION REQUIRED BY SECTION 23.3(C)(IX) AND THE NAME AND ADDRESS OF THE
TRANSFEREE FOR NOTICES;
(V)
(A) NEITHER THE TRANSFEREE NOR ANY AFFILIATE OF THE TRANSFEREE
SHALL BE ATTEMPTING A MERGER, ACQUISITION OR OTHER TAKEOVER OF LESSEE WHICH
MERGER, ACQUISITION OR OTHER TAKEOVER SHALL NOT HAVE BEEN APPROVED BY THE BOARD
OF DIRECTORS OF LESSEE, (B) NEITHER THE TRANSFEREE NOR ANY AFFILIATE OF THE
TRANSFEREE SHALL BE AN ADVERSE PLAINTIFF OR DEFENDANT IN ANY THEN EXISTING
LITIGATION THAT, IF DETERMINED ADVERSELY TO LESSEE, WOULD HAVE A MATERIAL
ADVERSE EFFECT