Leasehold Interests Each lease or agreement to which the Company is a party under which it is a lessee of any property, real or personal, is a valid and subsisting agreement without any default of the Company thereunder and, to the best of the Company's knowledge, without any default thereunder of any other party thereto. No event has occurred and is continuing which, with due notice or lapse of time or both, would constitute a default or event of default by the Company under any such lease or agreement or, to the best of the Company's knowledge, by any other party thereto. The Company's possession of such property has not been disturbed and, to the best of the Company's knowledge, no claim has been asserted against the Company adverse to its rights in such leasehold interests.
Real Estate Assets In order to create in favor of Global Agent, for the benefit of Lenders, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Global Agent shall have received from Company and each applicable Guarantor:
(i) fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(i)(i) (each, a "Closing Date Mortgaged Property");
(ii) an opinion of counsel (which counsel shall be reasonably satisfactory to Syndication Agent and Global Agent) in each state in which a Closing Date Mortgaged Property is located with respect to the enforceability of the form(s) of Mortgages to be recorded in such state and such other matters as Syndication Agent and Global Agent may reasonably request, in each case in form and substance reasonably satisfactory to Syndication Agent and Global Agent;
(iii) in the case of each Leasehold Property that is a Closing Date Mortgaged Property, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) ALTA mortgagee title insurance policies or unconditional commitments therefor issued by a title company with respect to each Closing Date Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty (30) days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Syndication Agent and Global Agent;
(v) evidence of flood insurance with respect to each Flood Hazard Property that is located in a community that participates in the National Flood Insurance Program, in each case in compliance with any applicable regulations of the Board of Governors of the Federal Reserve System, in form and substance reasonably satisfactory to Syndication Agent and Global Agent; and
(vi) ALTA surveys of all Closing Date Mortgaged Properties which are not Leasehold Properties, certified to Global Agent and dated not more than thirty (30) days prior to the Closing Date.
Real Estate Leases (a) Neither BGH Holdings nor BRH Holdings leases any real estate. Seller does not own or lease any real estate used in connection with the businesses of BGH Holdings, BRH Holdings, or the Companies.
(b) Schedule 4.16 sets forth a list of all of the leases or rights of occupancy pursuant to which the Companies (or any of them) lease or sublease any real property or interest therein (collectively, the "Leases"), including the identification of each of the Lessors thereof and the street addresses of the real estate demised under any of the Leases (collectively, the "Leased Real Estate"). Except as set forth in Schedule 4.16, one or more of the Companies is the lessee under all Leases, and no party other than one or more of the Companies has any right to possession, occupancy or use of any of the Leased Real Estate. A true and correct copy of each of the Leases has been delivered to Buyer, together with all amendments and modifications thereto, and no changes, amendments or modifications have been made thereto since the date of such delivery, except as permitted by Section 3.02 (k). Each of the Leases is valid and is in full force and effect and is binding and enforceable in accordance with its terms except to the extent such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the enforcement of creditors' rights or by general equitable principles. Except as set forth in Schedule 4.16, none of the Companies is in default (after expiration of applicable cure or grace periods) under any provision of any of the Leases, the failure of which to perform would permit the lessor thereunder to terminate such Lease, and, to Seller's knowledge, no event has occurred which (with or without notice, lapse of time or both) would render any of the Companies in default under any of such provisions which default would permit the lessor thereunder to terminate such Lease. To the knowledge of Seller, BRH Holdings, BGH Holdings, or the Companies, no other party to any of the Leases is in default under any of the material commitments and obligations thereof, and no event has occurred which (with or without notice, lapse of time or both) would render any such other party in default under any of such provisions.
(c) Except as set forth in Schedule 4.16, the Companies are in actual possession of the Leased Real Estate. Except as set forth in Schedule 4.16, the Companies have good and valid title to all the leasehold estates conveyed under the Leases free and clear of all Liens except for (i) (A) those provided under the relevant lease; (B) matters shown on Schedule 4.16; and (C) defects of title, conditions, easements, covenants or restrictions, if any, none of which items referred to clauses (A), (B) or (C) above is substantial in amount, and none of which, individually or in the aggregate, materially impairs or grants or evidences rights which, if exercised, would materially impair the current use of the affected property in the manner such property is currently being used by the Companies, or impairs the operations of any of the Companies; (ii) zoning or land use ordinances, none of which, to Seller's knowledge, individually or in the aggregate, materially impairs the use of the affected property in the manner such property is currently being used, or impairs the current operations of any of the Companies; and (iii) liens for taxes not yet due and payable (iv) any mortgage liens granted by any lessor under any of the Leases of the lessor's interest in the underlying real estate or the Leases. To Seller's knowledge, none of the Companies has received written notice of any violation of or non-conformity with any zoning, subdivision, wetlands or other similar law, code, rule, regulation or ordinance from any governmental authority with respect to any of the Leased Real Estate, or of any condemnation action, eminent domain proceeding or other litigation concerning any of such properties.
(d) Except as set forth in Schedule 4.16, the basic rent, all additional rent and all other charges and amounts payable under the Leases have been paid to date and not more than one month in advance. All work required to be performed under the Leases by the landlords thereunder or by any of the Companies have been performed, and, to the extent that any of the Companies is responsible for payment of such work, has been fully paid for, whether directly to the contractor performing such work or to such landlord as reimbursement therefor, except for items which any of the Companies is disputing in good faith (which items are set forth in Schedule 4.16).
(e) Except as set forth on Schedule 4.16, there are no brokerage commissions or finder's fees due from Seller or any of the Companies which are unpaid with regard to any of the Leases or the Leased Real Estate or which will become due at any time in the future with regard to the Leases or the Leased Real Estate.
(f) Except as set forth in Schedule 4.16, there have been no casualties which are reasonably likely to result in the termination of any of the Leases or the exercise of any buy-out provision contained in any of the Leases relative to damage by casualty.
(g) Except as set forth on Schedule 4.16, (i) no consent of any of the lessors under any of the Leases is required by reason of any of the transactions contemplated by this Agreement, and (ii) none of the rights of any of the Companies under any of the Leases will be impaired by the consummation of the transactions contemplated by this Agreement and all of such rights will be enforceable by the Companies after the Closing Date without the consent or agreement of any other party, including all rights to purchase any of the Leased Real Estate or to renew any of the Leases pursuant to options to purchase or renew contained in any of the Leases. Any lessor under any of the Leases whose consent or agreement is required is identified as such on Schedule 4.16.
Real Property Interests (a) The Owner has provided, or upon execution of this Agreement shall promptly provide to the Developer, documentation acceptable to the Department indicating any right, title or interest in real property claimed by the Owner with respect to the Owner Utilities in their existing location(s). Such claims are subject to the Department’s approval as part of its review of the Utility Assembly as described in Paragraph 2. Claims approved by the Department as to rights or interests are referred to herein as “Existing Interests”.
(b) If acquisition of any new easement or other interest in real property (“New Interest”) is necessary for the Adjustment of any Owner Utilities, then the Owner shall be responsible for undertaking such acquisition. The Owner shall implement each acquisition hereunder expeditiously so that related Adjustment construction can proceed in accordance with the Developer’s Project schedules. The Developer shall be responsible for the actual and reasonable acquisition costs of any such New Interest (including without limitation the Owner’s reasonable overhead charges and legal costs as well as compensation paid to the landowner), excluding any costs attributable to Betterment as described in Paragraph 16(c), and subject to the provisions of Paragraph 16(e); provided, however, that all acquisition costs shall be subject to the Developer’s prior written approval. Eligible acquisition costs shall be segregated from other costs on the Owner's estimates and invoices. Any such New Interest shall have a written valuation and shall be acquired in accordance with applicable law.
(c) A New Interest shall be substantially equivalent (e.g., in width and type) to the Existing Interest being replaced, unless a New Interest exceeding such standard (i) is required in order to accommodate the Project or by compliance with applicable law, or (ii) is called for by the Developer in the interest of overall Project economy. Any New Interest that does not meet the requirements of the preceding sentence shall be considered a Betterment to the extent that it upgrades the Existing Interest which it replaces, or in its entirety if the related Owner Utility was not installed pursuant to an Existing Interest. Betterment costs shall be solely the Owner’s responsibility.
(d) For each Existing Interest located within the final Project right of way, upon completion of the related Adjustment work and its acceptance by the Owner, the Owner agrees to execute a quitclaim deed or other appropriate documentation relinquishing such Existing Interest to the Department, unless the affected Owner Utility is remaining in its original location or is being reinstalled in a new location within the area subject to such Existing Interest. All quitclaim deeds or other relinquishment documents shall be subject to the Department's approval as part of its review of the Utility Assembly as described in Paragraph 2. For each such Existing Interest relinquished by the Owner, the Developer shall do one of the following to compensate the Owner for such Existing Interest, as appropriate:
(i) If the Owner acquires a New Interest for the affected Owner Utility, the Developer shall reimburse the Owner for its actual and reasonable acquisition costs in accordance with Paragraph 16(b); or
(ii) If the Owner does not acquire a New Interest for the affected Owner Utility, the Developer shall compensate the Owner for the fair market value of such relinquished Existing Interest, as mutually agreed between the Owner and the Developer and supported by a written valuation. The compensation provided to the Owner pursuant to either subparagraph (i) or subparagraph (ii) above shall constitute complete compensation to the Owner for the relinquished Existing Interest, and no further compensation shall be due to the Owner from either the Developer or the Department on account of such Existing Interest.
(e) The Owner shall execute a Utility Joint Use Acknowledgment (TxDOT-U-80A) for each Adjusted Owner Utility where required pursuant to TxDOT policies. All Utility Joint Use Acknowledgments shall be subject to TxDOT approval as part of its review of the Utility Assembly as described in Paragraph 2.
Real Estate All real property at any time owned or leased (as lessee or sublessee) by the Borrower or any of its Subsidiaries.
Real Properties The Company does not have an interest in any real property, except for the Leases (as defined below).
Leaseholds If the Mortgage Loan is secured by a long-term residential lease, (1) the lessor under the lease holds a fee simple interest in the land; (2) the terms of such lease expressly permit the mortgaging of the leasehold estate, the assignment of the lease without the lessor's consent and the acquisition by the holder of the Mortgage of the rights of the lessee upon foreclosure or assignment in lieu of foreclosure or provide the holder of the Mortgage with substantially similar protections; (3) the terms of such lease do not (a) allow the termination thereof upon the lessee's default without the holder of the Mortgage being entitled to receive written notice of, and opportunity to cure, such default, (b) allow the termination of the lease in the event of damage or destruction as long as the Mortgage is in existence, (c) prohibit the holder of the Mortgage from being insured (or receiving proceeds of insurance) under the hazard insurance policy or policies relating to the Mortgaged Property or (d) permit any increase in rent other than pre-established increases set forth in the lease; (4) the original term of such lease is not less than 15 years; (5) the term of such lease does not terminate earlier than five years after the maturity date of the Mortgage Note; and (6) the Mortgaged Property is located in a jurisdiction in which the use of leasehold estates in transferring ownership in residential properties is a widely accepted practice;
Owned Properties (i) Seller has good, indefeasible and marketable title to the Owned Real Estate and all personal property and fixtures thereon, free and clear of all liens and Encumbrances except the Permitted Exceptions (as such term is defined on Exhibit I attached hereto and made a part hereof). ---------
(ii) There are no pending or threatened condemnation proceedings, lawsuits, violations of applicable law or administrative actions relating to the Owned Real Estate or other matters affecting adversely the current use, access to, occupancy, or value of the Owned Real Estate.
(iii) Seller has complied with and the Owned Real Estate complies with all Legal Requirements and Environmental and Safety Requirements.
(iv) All buildings, Fee Improvements and other property on the Owned Real Estate, including all streets, curbs, curb cuts, sidewalks, sewers and utilities (including any necessary gas, electricity, water, sanitary and storm sewer service) have been supplied, completed and installed, and connected and (where appropriate) dedicated to and accepted by the local governing body.
(v) No notice from any governmental authority, insurance company or from any board of fire underwriters or real estate association (or other body exercising similar functions) has been received requesting the performance of any repairs, alterations or other work or affecting the operation of the Owned Real Estate.
(vi) The Owned Real Estate has been issued all permanent certificates of occupancy, all licenses, Permits, authorizations and approvals required by all governmental authorities having jurisdiction over the Owned Real Estate for the continued use of the Owned Real Estate as used at present, which are all in full force and effect.
(vii) Any covenants or restrictions to which the Owned Real Estate is subject have not been violated and will not be violated by any pending or contemplated improvement to the Owned Real Estate or use of the Owned Real Estate.
(viii) Seller will have paid, prior to the Closing Date, all taxes and assessments, including assessments payable in installments, which are to become due and payable and/or a lien on the Owned Real Estate, except for Taxes for the current year which shall be prorated at Closing, and no portion of the Owned Real Estate is affected by existing or impending special assessments, whether or not a lien thereon, and Seller has no knowledge of any impending increase in real estate or personal property Taxes affecting the Owned Real Estate.
(ix) Seller is not a "foreign person" as such term is defined in Section 1445(f)(3) of the Code.
(x) There are no leases, subleases, licenses, concessions or other agreements, written or oral, granting to any Person the right of use or occupancy of any portion of the Owned Real Estate and no Person other than Seller is in possession of the Owned Real Estate.
(xi) There are no outstanding options or rights of first refusal to purchase or lease the Owned Real Estate or any portion thereof or interest therein.
(xii) No air or development rights with respect to the Owned Real Estate have been transferred or sold, and no contract to sell such air or development rights is outstanding, other than pursuant to the terms and conditions of this Agreement.
(xiii) No employees, agents or contractors have been hired by or otherwise employed by Seller for the maintenance or management of the Owned Real Estate.
(xiv) No Contracts affect or impact the Owned Real Estate in any manner whatsoever including, without limitation, Contracts relating the operation, management, repair, operation or improvement of the Owned Real Estate.
(xv) All appliances and the water, sewer, heating, electrical, plumbing, air conditioning and other mechanical and electrical systems are in good working order and are adequate in quantity and quality for normal operations and are free from leaks. The roofs are free from leaks and are in sound structural condition. All other structural and non-structural portions of the Fee Improvements on the Owned Real Estate, including walls and foundations, are in sound structural condition and do not materially vary from their intended grade.
(xvi) The Owned Real Estate is free and clear of all visible evidence of termites, fungus, dry rot, beetles, other wood destroying insects, pests, faulty grade levels, shower leaks, cellulose debris or excessive moisture conditions, or other pest infestation or damage.
(xvii) No part of the Owned Real Estate is located in a flood plain or flood hazard or flood prone area as delineated by the federal or state government.
(xviii) All work performed on or materials furnished with respect to the Owned Real Estate prior to the Closing Date have been paid for by Seller prior to the Closing Date.
(xix) No portion of the Owned Real Estate or the building or the Fee Improvements thereon is designated by or registered with any governmental authority as historic or landmark buildings or any other similar designation or registration and Seller shall not attempt to obtain or effect any such designation or registration.
(xx) Seller represents and warrants that it did not deal with any broker or sales agent in connection with this Agreement or the sale of the Owned Real Estate.
Borrowing Base Properties (a) Except where the failure to comply with any of the following would not have a Material Adverse Effect, each of Parent and Borrower shall, and shall use commercially reasonable efforts to cause each other Loan Party or the applicable tenant, to:
(b) Pay all real estate and personal property taxes, assessments, water rates or sewer rents, ground rents, maintenance charges, impositions, and any other charges, including vault charges and license fees for the use of vaults, chutes and similar areas adjoining any Borrowing Base Property, now or hereafter levied or assessed or imposed against any Borrowing Base Property or any part thereof (except those which are being contested in good faith by appropriate proceedings diligently conducted).
(c) Promptly pay (or cause to be paid) when due all bills and costs for labor, materials, and specifically fabricated materials incurred in connection with any Borrowing Base Property (except those which are being contested in good faith by appropriate proceedings diligently conducted), and in any event never permit to be created or exist in respect of any Borrowing Base Property or any part thereof any other or additional Lien or security interest other than Liens permitted by Section 8.01.
(d) Operate the Borrowing Base Properties in a good and workmanlike manner and in all material respects in accordance with all Laws in accordance with such Loan Party’s prudent business judgment.
(e) Cause each other Loan Party to, to the extent owned and controlled by a Loan Party, preserve, protect, renew, extend and retain all material rights and privileges granted for or applicable to each Borrowing Base Property.
Real Property; Leasehold (a) No Acquired Corporation owns any, nor has any Acquired Corporation ever owned any, real property, nor is any Acquired Corporation party to, or bound by, any Contract to purchase or sell any real property.
(b) Part 3.8(b) of the Disclosure Schedule sets forth a list of each lease, sublease or other Contract pursuant to which any of the Acquired Corporations leases real property from any other Person (such leases, subleases or other Contracts required to be listed thereon, the “Company Leases”). (All real property leased to the Acquired Corporations, including all buildings, structures, fixtures and other improvements leased to the Acquired Corporations, is referred to as the “Leased Real Property”). The present use and operation of the Leased Real Property is authorized by, and is in compliance in all material respects with, all applicable zoning, land use, building, fire, health, labor, safety and Environmental Laws and other Legal Requirements. There is no Legal Proceeding pending, or, to the knowledge of the Company, threatened, that challenges or adversely affects, or would challenge or adversely affect, the continuation of the present ownership, use or operation of any Leased Real Property. To the knowledge of the Company, there is no existing plan or study by any Governmental Body or by any other Person that challenges or otherwise adversely affects the continuation of the present ownership, use or operation of any Leased Real Property. There are no subleases, licenses, occupancy agreements or other contractual obligations that grant the right of use or occupancy of any of the Leased Real Property to any Person other than the Acquired Corporations, and there is no Person in possession of any of the Leased Real Property other than the Acquired Corporations. Each of the Acquired Corporations has complied in all material respects with the terms of all Company Leases relating to the Leased Real Property, and all such Company Leases are in full force and effect in all material respects. To the knowledge of the Company, the Leased Real Property is in good operating condition and repair. The Company has Made Available to Parent true, correct and complete copies of all Company Leases. No Acquired Corporation is party to any Contract or, to the knowledge of the Company, subject to any claim that may require the payment of any real estate brokerage commissions, and no commission is owed with respect to any of the Leased Real Property. The Leased Real Property constitutes all real property used in or necessary to conduct the business of each Acquired Corporation as currently being conducted.
