Properties and Assets. The Company and its subsidiaries have good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not had, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied by the Company or any of its subsidiaries as of the date hereof. The Company’s and each of its subsidiaries’ buildings, equipment and other tangible assets are in good operating condition (normal wear and tear excepted). All material leases pursuant to which the Company or any of its subsidiaries are a party are in good standing, valid and effective in accordance with their respective terms, and there is not under any of such leases, to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Magellan Holdings, Inc.), Agreement and Plan of Merger (Datastream Systems Inc)
Properties and Assets. The Company and its subsidiaries Subsidiaries have good record and valid marketable fee title to, or, in the case of leased properties to all real Property and all other Property and assets, valid leasehold interests inwhether tangible or intangible, all of their material tangible properties owned by them and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful reasonably necessary in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct such Subsidiaries. All of the business leases necessary in any material respect for the operation of their respective properties and assets, under which the Company or any of its subsidiaries Subsidiaries holds any Property or assets, real or personal, are valid, subsisting and (iv) all matters enforceable and afford peaceful and undisturbed possession of record and Liens which have not hadthe subject matter of the lease, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied no material default by the Company or any of its subsidiaries as Subsidiaries exists under any of the date hereofprovisions thereof. The Company’s and each of its subsidiaries’ All buildings, machinery and equipment of the Company and other tangible assets its Subsidiaries are in good operating condition (normal repair and working order, except for ordinary wear and tear excepted)tear. All material leases pursuant current and proposed uses of such Property of the Company and its Subsidiaries as set forth in the Company SEC Documents and the Information Memorandum are permitted as of right and no such Law interferes with such current or proposed uses. To the knowledge of the Company, there is no pending or formally proposed change in any such Laws, which would have a Material Adverse Effect on the Company and its Subsidiaries on a consolidated basis. Except as set forth on Schedule 5.21, no condemnation proceeding is pending or, to which the knowledge of the Company, threatened against the Company or any of its subsidiaries Subsidiaries. All Property of the Company and its Subsidiaries are free from all Liens except for (i) Liens which would not have a party are in good standing, valid Material Adverse Effect on the Company and effective in accordance with their respective terms, its Subsidiaries on a consolidated basis; (ii) Liens disclosed on Schedule 5.21 hereto; and there is not under (iii) Permitted Liens. Except as set forth on Schedule 5.21 hereto and except as entered into pursuant to the Transaction Documents neither the Company nor any of such leasesits Subsidiaries has signed any material financing statement, to the Company’s knowledge, any existing default as debtor or event of default (or event which with notice or lapse of timelessee, or both, would constitute a default), except where the lack of any security agreement authorizing any secured party thereunder to file any such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effectfinancing statement.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Moore Capital Management Inc /New), Securities Purchase Agreement (Headway Corporate Resources Inc)
Properties and Assets. The Company Arbor Assets are all of the assets and its subsidiaries have good known or contingent liabilities of Arbor as of the date hereof. Arbor does not own any real property nor is it a party to any contract for the purchase, sale, or development of real estate. Arbor has provided to TeleBanc a true, correct and valid title tocomplete copy of each real property lease, orsublease, or similar agreement to which Arbor is a party. Except for (a) items reflected in the case audited financial statements of leased properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries Arbor as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business1995, (b) for defects exceptions to title that do not interfere materially with Arbor's use and enjoyment of leased real property (other than real property acquired through foreclosure or a transaction in titlelieu of foreclosure), easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth liens for current real estate taxes not yet delinquent, or being contested in good faith, properly reserved against (and reflected on the financial statements referred to in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means 4.6 below) and (id) inchoate mechanics’ properties and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising assets sold or transferred in the ordinary course of business of the Company or any subsidiary consistent with past practicepractice since December 31, (ii) Liens for taxes not yet due 1995, Arbor has good title to all its properties and payable assets, including the properties and assets reflected in the Schedule A of Arbor Assets, whether real, personal, tangible or which are otherwise being contested in good faith for which adequate reservesintangible, free and clear of all liens, claims, charges and other encumbrances. Arbor, as applicablelessee, have been established has the right under valid and subsisting leases to occupy, use and possess all property leased by it, and there has not occurred under any such lease any breach, violation or default except with respect to deductibles under insurance policies that comply with the requirements of Section 4.10, and Arbor has not experienced any uninsured damage or destruction with respect to such properties since December 31, 1995. Arbor enjoys peaceful and undisturbed possession under all leases for the use of real or tangible personal property under which it is the lessee, and all leases to which Arbor is a party are valid and enforceable in the Company’s financial statements all material respects in accordance with United States generally accepted accounting principlesthe terms thereof except as may be limited by bankruptcy, (iii) Liens which do notinsolvency, individually moratorium or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries other similar laws affecting creditors' rights and (iv) all matters of record and Liens which have not had, and could not reasonably except as may be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied limited by the Company or any exercise of its subsidiaries as judicial discretion in applying principles of the date hereofequity. The Company’s and each of its subsidiaries’ buildings, equipment and other tangible assets are in good operating condition (normal wear and tear excepted). All material leases pursuant to which the Company or any of its subsidiaries are a party are in good standing, valid and effective in accordance with their respective terms, and there Arbor is not under in default with respect to any of such leases, to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effectlease.
Appears in 1 contract
Properties and Assets. The (a) Neither the Company and nor any of its subsidiaries have good and valid title toSubsidiaries has transferred, or, in the case sold or otherwise disposed of leased properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet destroyed any KSO Unit Installations. Each of the Company and its subsidiaries Subsidiaries has good, valid and marketable title to all of (i) the KSO Unit Installations in the possession of or under the control of the KSO Unit and (ii) as of December 31the date of execution of this Agreement (except as set forth in Schedule 4.19 of the Signing Disclosure Schedule), 2004 or acquired thereafterand as of the Closing Date, the properties and assets in the possession of the Company and its Subsidiaries, in each case free and clear of any Liens all Encumbrances whatsoever (other than Permitted Lienscollectively, the "Assets"), except (aprovided however that between the date hereof and the Closing Date, the Company intends to sell or transfer to one or more third parties the assets listed in Schedule 4.17(e) for such as are no longer used of the Signing Disclosure Schedule. Neither the Company nor any of its Subsidiaries owns any land or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business, buildings. 43 <PAGE> (b) Except for defects in titlethe Arbitration Proceeding, easementsthere is no Proceeding pending, restrictive covenants and similar encumbrances that individually or in to the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 Knowledge of the Company Disclosure Schedule. For purposes of this AgreementSelling Shareholders, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progressthreatened against, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business involving or affecting any of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of Assets. Neither the Company or nor any of its subsidiaries and (iv) all matters of record and Liens which have not hadSubsidiaries is a party to any lease, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, used assignment or occupied by the Company or any of its subsidiaries as of the date hereof. The Company’s and each of its subsidiaries’ buildings, equipment and other tangible assets are in good operating condition (normal wear and tear excepted). All material leases pursuant to similar arrangement under which the Company or any of its subsidiaries Subsidiaries is a lessor or assignor of, or otherwise makes available for use by any third-party, any of the Assets. (c) Each of the Company and its Subsidiaries has obtained all appropriate certificates, licenses, easements and rights of way required to use and operate the Assets in the manner in which the Assets are a party are currently being used and operated. True and complete copies of all such certificates, permits and licenses in good standingrespect of any Real Property have been furnished to Purchaser by the Selling Shareholders. Each of the Company and its Subsidiaries has all approvals, valid permits and effective in accordance with their respective termslicenses necessary to own or operate the Assets as currently owned and operated, and there is not under any no such approvals, permits or licenses will be required, as a result of such leasesthe Transactions, to be issued after the Company’s knowledgedate hereof in order to permit each of the Company and its Subsidiaries, any existing default following the Closing, to continue to own or event of default (or event which with notice or lapse of time, or both, would constitute a default), except where operate the lack of such good standing, validity and effectiveness or Assets in the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effect.same manner as heretofore. Section 4.20
Appears in 1 contract
Samples: www.sec.gov
Properties and Assets. The Company (a) Section 5.8(a) of the Parent Disclosure Schedule sets forth a complete and its subsidiaries have good and valid title to, or, in the case accurate list of leased all physical properties and assets, valid leasehold interests inin each case with a fair market value in excess of $100,000, all of their material tangible properties and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as that are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not had, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, leased or used or occupied by the any Acquired Company or any of its subsidiaries as of the date hereof. With respect to physical properties and assets that an Acquired Company purports to own, except as set forth on Section 5.8(a) of the Parent Disclosure Schedule, such Acquired Company has good and marketable title to such properties and assets free and clear of all Liens other than Permitted Liens. With respect to physical properties and assets that are leased by an Acquired Company, such Acquired Company has a valid leasehold interest in such properties and assets free and clear of all Liens, other than Permitted Liens. The Company’s and each Acquired Companies own, lease under valid leases or otherwise have all necessary right to use all physical properties or assets necessary for the conduct of its subsidiaries’ buildings, equipment and other tangible their business as currently conducted or as presently proposed to be conducted by the Acquired Companies. No physical properties or assets related to or used by any Acquired Company are in good operating condition (normal wear and tear excepted). All material leases pursuant to which the Company owned or leased by any Seller or any Affiliate of its subsidiaries are a party are in good standingany Seller or any Acquired Company (other than another Acquired Company) or, valid except as set forth on Section 5.8(a) of the Parent Disclosure Schedule, any portfolio company of Oak. The execution and effective in accordance with their respective termsdelivery of this Agreement and the Ancillary Agreements contemplated hereby, and there is the consummation of the Contemplated Transactions will not under adversely affect or otherwise impair the ability of the Acquired Companies to use, and fully to enjoy the benefits of all of, the physical properties and assets which are currently employed, owned or leased by any of such leasesthe Acquired Companies or necessary in the conduct of their business and immediately upon consummation of the Contemplated Transactions, the Acquired Companies will be entitled to continue to use all the Company’s knowledgephysical properties and assets which are currently employed, owned or leased, by any existing default of the Acquired Companies or event necessary in the conduct of default (or event which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effecttheir business.
Appears in 1 contract
Properties and Assets. The Company and its subsidiaries Subsidiaries have good record and valid marketable fee title to, to (or, in the case of leased properties licensed Property, valid licenses to) all real Property and all other Property and assets, valid leasehold interests inwhether tangible or intangible, all of their material tangible properties owned by or licensed to them and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful reasonably necessary in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practicesuch Subsidiaries, (ii) Liens for taxes not yet due and payable or which are otherwise being contested except defects in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens title which do not, individually or in the aggregate, materially interfere with or materially impair the conduct not and will not have a Material Adverse Effect. All of the business leases necessary in any material respect for the operation of their respective properties and assets, under which the Company or any of its subsidiaries Subsidiaries holds any Property or assets, real or personal, are valid, subsisting and (iv) all matters enforceable and afford peaceful and undisturbed possession of record and Liens which have not hadthe subject matter of the lease, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied no material default by the Company or any of its subsidiaries as Subsidiaries exists under any of the date hereofprovisions thereof. The Company’s and each of its subsidiaries’ All buildings, machinery and equipment of the Company and other tangible assets its Subsidiaries are in good operating condition (normal repair and working order, except for ordinary wear and tear excepted)tear, and except as would have a Material Adverse Effect. All material leases pursuant current and proposed uses of such Property or assets of the Company and its Subsidiaries are permitted as of right and no regulation or ordinance interferes with such current or proposed uses. To the knowledge of the Company, there is no pending or formally proposed change in any such laws, regulations and ordinances which would have a Material Adverse Effect. Except as set forth on SCHEDULE 4.21, no condemnation proceeding is pending or, to which the knowledge of the Company, threatened against the Company or any of its subsidiaries Subsidiaries. All Property and assets of any kind (real or personal, tangible or intangible) of the Company and its Subsidiaries are a party are in good standing, valid and effective in accordance with their respective terms, and there is not under any of such leases, to the Company’s knowledge, any existing default or event of default free from all Liens except for (or event a) Liens which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effect; (b) Liens disclosed on SCHEDULE 4.21 hereto; and (c) Permitted Liens. Except as set forth on SCHEDULE 4.21 hereto, neither the Company nor any of its Subsidiaries has signed any material financing statement, as debtor or lessee, or any security agreement authorizing any secured party thereunder to file any such financing statement.
Appears in 1 contract
Properties and Assets. The Company Each of ABI and its subsidiaries have Subsidiaries has good and valid marketable title toor leasehold title, oras the case may be, to all of its respective assets and properties that it purports to own or lease, including without limitation all those reflected in the case of leased ABI Most Recent Balance Sheet (except for properties and assetsor assets sold, valid leasehold interests inconsumed, all of their material tangible properties and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful in the conduct of their businesses or as have been otherwise disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in business since the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 date of the Company Disclosure Schedule. For purposes ABI Most Recent Balance Sheet), all free and clear of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company on ABI's or any of its subsidiaries Subsidiaries' interest therein. All such properties and (iv) all matters of record assets are in good condition and Liens which have not hadrepair, reasonable wear-and-tear excepted, and are, and as of the Closing Date will be, adequate and sufficient to carry on the business of ABI and its Subsidiaries as presently conducted. To ABI's knowledge, Schedule 7.10 of the ABI Disclosure Schedule sets forth a complete and correct list of all capital assets of ABI and its Subsidiaries. Neither ABI nor any of its Subsidiaries owns any real property. Neither ABI nor any of its Subsidiaries has received any notice that either the whole or any portion of any real property leased by it is to be condemned, requisitioned, or otherwise taken by any public authority or is to be the subject of any public improvements that may result in special assessments against or otherwise affect such real property. Schedule 7.10 of the ABI Disclosure Schedule sets forth a complete and correct description of all leases of real property to which ABI or its Subsidiaries is a party. Complete and correct copies of all such leases have been delivered to the Company. Each such lease is valid and subsisting and no event or condition exists that constitutes, or after notice or lapse of time or both could not reasonably be expected to haveconstitute, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied default thereunder by the Company ABI or any of its subsidiaries as Subsidiaries, or to the best of the date hereofABI's knowledge, any other person. The Company’s leasehold interests of ABI and each of its subsidiaries’ buildingsSubsidiaries are subject to no Lien, equipment and other tangible assets ABI and its Subsidiaries are in good operating condition (normal wear and tear excepted). All material leases pursuant to which quiet possession of the Company or any of its subsidiaries are a party are in good standing, valid and effective in accordance with their respective terms, and there is not under any of properties covered by such leases, to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Activbiotics Inc)
Properties and Assets. The SCHEDULE 4.1.14 hereto sets forth a complete and correct list of (a) all real property owned by the Company or a Subsidiary, (b) any lease pursuant to which the Company or a Subsidiary is the lessee of real property and its subsidiaries have good and valid title to, or, (c) each item of tangible personal property used in or relating to the case conduct of leased properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used or held for use in their the businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as Subsidiaries that has been capitalized for accounting purposes. The Company and the Subsidiaries have (a) good and valid title to all of December 31their respective personal property, 2004 including, without limitation, all those reflected in the Financial Statements or acquired thereafterafter the date of the Interim Balance Sheet (except for inventories and other assets sold or otherwise disposed of in the Ordinary Course of Business since such date), and (b) good and marketable title to all the real property listed in SCHEDULE 4.1.14 as owned by them, and valid leasehold interests in all real properties listed in SCHEDULE 4.1.14 as leased by them, in each case free and clear of any Liens (other than Permitted Liens)all mortgages, except (a) for such as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of businessliens, (b) for defects in titlecharges, encumbrances, easements, restrictive covenants and similar encumbrances that individually security interests or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means title imperfections other than (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising those reflected in the ordinary course of business of the Company Financial Statements or any subsidiary consistent with past practice, listed in SCHEDULE 4.1.14 and (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens those which do not, individually or in the aggregate, (x) materially interfere with the operation of their businesses as presently conducted or materially impair the conduct of the business of the Company (y) otherwise have, or any of its subsidiaries and (iv) all matters of record and Liens which have not had, and could not reasonably be expected to have, a Company Material Adverse Effect. The Company and each Subsidiary enjoys peaceful and undisturbed possession under all real property listed in Section 3.25 leases under which it operates. The Company has not received written notice that the ownership or lease of real property by the Company Disclosure Schedule constitutes all and the Subsidiaries and the use thereof, as presently used by the Company and the Subsidiaries, violates any local zoning or similar land use laws or governmental regulations. The Company has not received written notice of violation of or noncompliance with any covenant, condition, restriction, order or easement affecting the real property owned, used owned or occupied leased by the Company or the Subsidiaries. Neither the Company nor any Subsidiary has received written notice of condemnation or threatened condemnation affecting the real property owned or leased by the Company or any of its subsidiaries as Subsidiary. The Company has made available to Parent and Newco complete and correct copies of the date hereoflease agreements referred to in SCHEDULE 4.1.14. The Company’s personal property, equipment, plants, buildings, structures, facilities and all other assets and properties that will be owned or leased by the Surviving Corporation and/or the Subsidiaries at the Effective Time will include all personal property, equipment, plants, buildings, structures, facilities and all other assets and properties necessary to permit the Surviving Corporation and each of its subsidiaries’ buildings, equipment and other tangible assets are in good operating condition (normal wear and tear excepted). All material leases pursuant Subsidiary to which the Company or any of its subsidiaries are a party are in good standing, valid and effective in accordance with conduct their respective terms, and there is not under any of such leases, to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default)businesses as presently conducted, except where the lack of for such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effectchanges as are permitted by SECTION 5.2.
Appears in 1 contract
Properties and Assets. The Company and its subsidiaries Subsidiaries have good record and valid marketable fee title to, to (or, in the case of leased properties licensed Property, valid licenses to) all real Property and all other Property and assets, valid leasehold interests inwhether tangible or intangible, all of their material tangible properties owned by them and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful reasonably necessary in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practicesuch Subsidiaries, (ii) Liens for taxes not yet due and payable or which are otherwise being contested except defects in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens title which do not, individually or in the aggregate, materially interfere with or materially impair the conduct not and will not have a Material Adverse Effect. All of the business leases necessary in any material respect for the operation of their respective properties and assets, under which the Company or any of its subsidiaries Subsidiaries holds any Property or assets, real or personal, are valid, subsisting and (iv) all matters enforceable and afford peaceful and undisturbed possession of record and Liens which have not hadthe subject matter of the lease, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied no material default by the Company or any of its subsidiaries as Subsidiaries exists under any of the date hereofprovisions thereof. The Company’s and each of its subsidiaries’ All buildings, machinery and equipment of the Company and other tangible assets its Subsidiaries are in good operating condition (normal repair and working order, except for ordinary wear and tear excepted)tear, and except as would have a Material Adverse Effect. All material leases pursuant current and proposed uses of such Property or assets of the Company and its Subsidiaries are permitted as of right and no regulation or ordinance interferes with such current or proposed uses. To the knowledge of the Company, there is no pending or formally proposed change in any such laws, regulations and ordinances which would have a Material Adverse Effect. Except as set forth on SCHEDULE 4.20, no condemnation proceeding is pending or, to which the knowledge of the Company, threatened against the Company or any of its subsidiaries Subsidiaries. All Property and assets of any kind (real or personal, tangible or intangible) of the Company and its Subsidiaries are a party are in good standing, valid and effective in accordance with their respective terms, and there is not under any of such leases, to the Company’s knowledge, any existing default or event of default free from all Liens except for (or event a) Liens which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effect; (b) Liens disclosed on SCHEDULE 4.20 hereto; and (c) Permitted Liens. Except as set forth on SCHEDULE 4.20 hereto, neither the Company nor any of its Subsidiaries has signed any material financing statement, as debtor or lessee, or any security agreement authorizing any secured party thereunder to file any such financing statement.
Appears in 1 contract
Properties and Assets. The Company and its subsidiaries Subsidiaries have good and valid marketable title to, or, in the case of leased properties and assets, valid leasehold interests in, all of their material tangible properties or the legal right to use, and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, hold free and clear of any all Liens and Encumbrances, all of the assets, properties and leasehold interests reflected in the Financial Statements (other than Permitted Liensthe “Assets”), except (a) for such as are no longer used those sold or useful in the conduct of their businesses or as have been otherwise disposed of in since the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 date of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising Financial Statements in the ordinary course of business consistent with past practice and not in violation of this Agreement, and except for Permitted Encumbrances. All Assets of the Company and its Subsidiaries that are material to the operations of their respective businesses are in good operating condition and repair, subject to normal wear and tear. The Company and its Subsidiaries have delivered to Parent or any subsidiary consistent with past practiceotherwise made available, correct and complete copies of all leases, subleases and other material agreements or other material instruments relating to all real property used in conducting the businesses of the Company and the Subsidiaries to which the Company or the Subsidiaries is a party (ii) Liens for taxes not yet due and payable or collectively, the “Real Property”), all of which are otherwise being contested in good faith for which adequate reservesidentified on Schedule 3.7. There are no pending or, as applicable, have been established in to the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business Knowledge of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not hadthe Subsidiaries, and could not reasonably be expected threatened condemnation proceedings relating to have, a Company Material Adverse Effect. The real property listed in Section 3.25 any of the Company Disclosure Real Property. Except as set forth on Schedule constitutes all 3.7, none of the real property ownedimprovements (including leasehold improvements), equipment and other Assets owned or used or occupied by the Company or its Subsidiaries is subject to any commitment or other arrangement for their sale or use by any Affiliate of its subsidiaries as of the date hereof. The Company’s and each of its subsidiaries’ buildings, equipment and other tangible assets are in good operating condition (normal wear and tear excepted). All material leases pursuant to which the Company or its Subsidiaries, or by third parties. To the Knowledge of the Principal Shareholder, the Company’s leased real estate is free and clear of any zoning or use or building restriction or any pending, proposed or threatened zoning or use or building restriction which would interfere with the present or any intended use by the Company of any of its subsidiaries such leased real estate. Such leases are a party are in good standing, valid and effective binding and in accordance with their respective termsfull force and effect, and there the Company is not in default thereunder as to the payment of rent or otherwise. The consummation of the transactions contemplated by this Agreement will not constitute an event of default under any of such leases, to said leases and the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standingcontinuation, validity and effectiveness or the existence of such default or event of default would leases will not reasonably be expected to have a Company Material Adverse Effectadversely affected by the transactions contemplated by this Agreement.
Appears in 1 contract
Properties and Assets. The Company and each of its subsidiaries Subsidiaries have good record and valid marketable fee title to, or, in the case of leased properties to all real property and all other property and assets, valid leasehold interests inwhether tangible or intangible, all of their material tangible properties owned by them and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful reasonably necessary in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practiceand each of its Subsidiaries, (ii) Liens for taxes not yet due and payable or which are otherwise being contested except defects in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens title which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries not and (iv) all matters of record and Liens which will not have not had, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 All of the leases necessary in any material respect for the operation of their respective properties and assets, under which the Company Disclosure Schedule constitutes all and each of its Subsidiaries holds any property or assets, real or personal, are valid, subsisting and enforceable and afford peaceful and undisturbed possession of the real property ownedsubject matter of the lease, used or occupied and no material default by the Company or any of its subsidiaries as Subsidiaries exist under any of the date hereofprovisions thereof. The Company’s All buildings, machinery and equipment of the Company and each of its subsidiaries’ buildings, equipment and other tangible assets Subsidiaries are in good operating condition (normal repair and working order, except for ordinary wear and tear excepted)tear, and except as would have a Material Adverse Effect. All material leases pursuant current and proposed uses of such property or assets of the Company and each of its Subsidiaries are permitted as of right and, to the knowledge of the Company, no such regulation or ordinance interferes with such current or proposed uses. To the knowledge of the Company, there is no pending or formally proposed change in any such laws, regulations and ordinances which would have a Material Adverse Effect. Except as set forth on SCHEDULE 4.20, no condemnation proceeding is pending or, to the knowledge of the Company, threatened against the Company or any of its subsidiaries Subsidiaries. All property and assets of any kind (real or personal, tangible or intangible) of the Company and each of its Subsidiaries are a party are in good standing, valid free from all Liens except for (i) Liens disclosed on SCHEDULE 4.20 hereto and effective in accordance with their respective terms, and there is not under any of such leases, to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effectii) Permitted Liens.
Appears in 1 contract
Properties and Assets. The Company and its subsidiaries Subsidiaries have good record and valid marketable fee title to, or, in the case of leased properties to all real Property and all other Property and assets, valid leasehold interests inwhether tangible or intangible, all of their material tangible properties owned by them and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful reasonably necessary in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practicesuch Subsidiaries, (ii) Liens for taxes not yet due and payable or which are otherwise being contested except defects in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens title which do notnot and will not have a Material Adverse Effect on the Company and its Subsidiaries on a consolidated basis or on the Subsidiaries, individually or in the aggregate, materially interfere with or materially impair the conduct individually. All of the business leases necessary in any material respect for the operation of their respective properties and assets, under which the Company or any of its subsidiaries Subsidiaries holds any Property or assets, real or personal, are valid, subsisting and (iv) all matters enforceable and afford peaceful and undisturbed possession of record and Liens which have not hadthe subject matter of the lease, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied no material default by the Company or any of its subsidiaries as Subsidiaries exists under any of the date hereofprovisions thereof. The Company’s and each of its subsidiaries’ All buildings, machinery and equipment of the Company and other tangible assets its Subsidiaries are in good operating condition (normal repair and working order, except for ordinary wear and tear excepted)that would not have a Material Adverse Effect on the Company and its Subsidiaries on a consolidated basis or on the Subsidiaries, individually. All material leases pursuant current uses of such Property or assets of the Company and its Subsidiaries are permitted as of right under all appropriate laws, regulation and ordinances and no such law, regulation or ordinance interferes with such current or proposed uses. To the knowledge of the Company, there is no pending or formally proposed change in any such laws, regulations and ordinances which would have a Material Adverse Effect on the Company and its Subsidiaries on a consolidated basis or on the Subsidiaries, individually. Except as set forth on Schedule 4.19, no condemnation proceeding is pending or, to which the knowledge of the Company, threatened against the Company or any of its subsidiaries Subsidiaries. All Property and assets of any kind (real or personal, tangible or intangible) of the Company and its Subsidiaries are free from all Liens except for (i) Liens which would not have a party are in good standingMaterial Adverse Effect on the Company and its Subsidiaries on a consolidated basis or on the Subsidiaries, valid individually; and effective in accordance with their respective terms, and there is not under (ii) Liens disclosed on Schedule 4.19 hereto. Neither the Company nor any of such leasesits Subsidiaries has signed any material financing statement, to the Company’s knowledge, any existing default as debtor or event of default (or event which with notice or lapse of timelessee, or both, would constitute a default), except where the lack of any security agreement authorizing any secured party thereunder to file any such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effectfinancing statement. 4.20.
Appears in 1 contract
Samples: Incorporated _________________________ Stock Purchase Agreement (FMR Corp)
Properties and Assets. The Company and its subsidiaries Subsidiaries have good --------------------- record and valid marketable fee title to, to (or, in the case of leased properties licensed Property, valid licenses to) all real Property and all other Property and assets, valid leasehold interests inwhether tangible or intangible, all of their material tangible properties owned by them and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful reasonably necessary in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practicesuch Subsidiaries, (ii) Liens for taxes not yet due and payable or which are otherwise being contested except defects in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens title which do not, individually or in the aggregate, materially interfere with or materially impair the conduct not and will not have a Material Adverse Effect. All of the business leases necessary in any material respect for the operation of their respective properties and assets, under which the Company or any of its subsidiaries Subsidiaries holds any Property or assets, real or personal, are valid, subsisting and (iv) all matters enforceable and afford peaceful and undisturbed possession of record and Liens which have not hadthe subject matter of the lease, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied no material default by the Company or any of its subsidiaries as Subsidiaries exists under any of the date hereofprovisions thereof. The Company’s and each of its subsidiaries’ All buildings, machinery and equipment of the Company and other tangible assets its Subsidiaries are in good operating condition (normal repair and working order, except for ordinary wear and tear excepted)tear, and except as would have a Material Adverse Effect. All material leases pursuant current and proposed uses of such Property or assets of the Company and its Subsidiaries are permitted as of right and no regulation or ordinance interferes with such current or proposed uses. To the knowledge of the Company, there is no pending or formally proposed change in any such laws, regulations and ordinances which would have a Material Adverse Effect. Except as set forth on Schedule 4.20, no condemnation proceeding is pending or, to which the knowledge of the ------------- Company, threatened against the Company or any of its subsidiaries Subsidiaries. All Property and assets of any kind (real or personal, tangible or intangible) of the Company and its Subsidiaries are a party are in good standing, valid and effective in accordance with their respective terms, and there is not under any of such leases, to the Company’s knowledge, any existing default or event of default free from all Liens except for (or event a) Liens which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effect; (b) Liens disclosed on Schedule -------- 4.20 hereto; and (c) Permitted Liens. Except as set forth on Schedule 4.20 ---- ------------- hereto, neither the Company nor any of its Subsidiaries has signed any material financing statement, as debtor or lessee, or any security agreement authorizing any secured party thereunder to file any such financing statement.
Appears in 1 contract
Properties and Assets. The Company and its subsidiaries Subsidiaries have good record and valid marketable title to, to (or, in the case of leased properties and assetslicensed Property, valid leasehold interests inlicenses to) all Property, all of their material tangible properties owned by or licensed to them and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful reasonably necessary in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practicesuch Subsidiaries, (ii) Liens for taxes not yet due and payable or which are otherwise being contested except defects in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens title which do not, individually or in the aggregate, materially interfere with or materially impair the conduct not and will not have a Material Adverse Effect. All of the business leases necessary in any material respect for the operation of their respective properties and assets, under which the Company or any of its subsidiaries Subsidiaries holds any Property, are valid, subsisting and (iv) all matters enforceable and afford peaceful and undisturbed possession of record and Liens which have not hadthe subject matter of the lease, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied no material default by the Company or any of its subsidiaries as Subsidiaries exists under any of the date hereofprovisions thereof. The Company’s and each of its subsidiaries’ All buildings, machinery and equipment of the Company and other tangible assets its Subsidiaries are in good operating condition (normal repair and working order, except for ordinary wear and tear excepted)tear, and except as would have a Material Adverse Effect. All material leases pursuant current and proposed uses of such Property of the Company and its Subsidiaries are permitted as of right and no regulation or ordinance interferes with such current or proposed uses. To the knowledge of the Company, there is no pending or formally proposed change in any such laws, regulations and ordinances which would have a Material Adverse Effect. Except as set forth on SCHEDULE 3.21, no condemnation proceeding is pending or, to which the knowledge of the Company, threatened against the Company or any of its subsidiaries Subsidiaries. All Property of the Company and its Subsidiaries are a party are in good standing, valid and effective in accordance with their respective terms, and there is not under any of such leases, to the Company’s knowledge, any existing default or event of default free from all Liens except for (or event a) Liens which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effect; (b) Liens disclosed on SCHEDULE 3.21 hereto; and (c) Permitted Liens. Except as set forth on SCHEDULE 3.21 hereto, neither the Company nor any of its Subsidiaries has signed any material financing statement, as debtor or lessee, or any security agreement authorizing any secured party thereunder to file any such financing statement.
Appears in 1 contract
Properties and Assets. The Company Each of Borrower and its subsidiaries have each Subsidiary thereof has good and valid title to, or, in the case of leased properties and assets, or valid leasehold interests in, all of their material tangible properties its assets and assets, real and personal, used or held properties. Except for use in their businesses located on their premises or shown on the consolidated balance sheet (a) as of the Company Effective Date, the nonstandard exceptions to the title assurances received by the Lender pursuant to Section 5.1(g) hereof and its subsidiaries as for the Lien of December 31the Credit Agricole Loan Documents, 2004 or acquired thereafterand (b) thereafter Permitted Liens, there are no Liens on any Collateral. Without limiting the generality of the foregoing, the Debtors own, free and clear of any all Liens (other than Permitted Liens)) overlying groundwater rights and other Water Rights to receive water on the real property Collateral that are appurtenant to such real property Collateral. Each Debtor has the right to, except and does, enjoy peaceful and undisturbed possession under all leases under which it is leasing property. All such leases are valid, subsisting and in full force and effect, and none of such leases is in default. Schedule 3.16 sets forth, with respect to Borrower and each Subsidiary of Borrower, as of the date of this Agreement, a complete and correct list of (a) for such as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business, each Patent and Trademark; (b) for defects in titleall tradenames under which such Person currently conducts, easementsor has within the last five (5) years conducted, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and business; (c) the addresses of all locations at which such Person conducts any portion of its business; (d) all real property owned or leased by such Person (as lessor or lessee) and indicating on which parcels such Person grows, or intends to grow, crops and the Borrower's Ranch number therefor; (e) all Investments of such Person, and (f) all insurance policies under which such Person is either a loss payee or an additional insured. Borrower has heretofore delivered to Lender a schedule of all Marketing Agreements to which any such Person is a party as of the date of this Agreement, including, with respect to each such Marketing Agreement, the names of the parties thereto, the crops and number of acres to which it applies, the term and payment terms thereof, the date by which such Marketing Agreement must be renewed or replaced by a new Marketing Agreement with the Grower party thereto with respect to the next succeeding crop cycle, and the percentage of the total units of produce projected to be sold by Borrower under Marketing Agreements during the fiscal year ending December 31, 1996 represented by such Marketing Agreement. Borrower's chief executive office and chief place of business is located at the address for notices set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not had, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied by the Company or any of its subsidiaries as of the date 7.1 hereof. The Company’s and each of its subsidiaries’ buildings, equipment and other tangible assets are in good operating condition (normal wear and tear excepted). All material leases pursuant to which the Company or any of its subsidiaries are a party are in good standing, valid and effective in accordance with their respective terms, and there is not under any of such leases, to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Credit Agreement (Cadiz Land Co Inc)
Properties and Assets. The Company Schedule 3.16 of the Seller Disclosure Schedule contains an accurate description (by subject leased real and its subsidiaries have good immovable property, name of lessor, date of lease and valid title toterm expiration date) of each real or immovable property lease, or, sublease or installment purchase arrangement to which Sellers are a party relating to the Business; and a list of all fixed assets used in the case Business. No Seller owns any real property relating to the Business. Except for (1) items reflected in the Financial Statements, (2) exceptions to title that do not interfere materially with Sellers’ use and enjoyment of owned or leased real or immovable property, (3) Permitted Exceptions, (4) properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used assets sold or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising transferred in the ordinary course of business of the Company or any subsidiary consistent with past practicepractices since the Balance Sheet Date, and (ii5) Liens for taxes not yet due and payable items listed on Schedule 3.16 of the Seller Disclosure Schedule, Sellers have good title to the assets relating the Business or which are otherwise being contested in good faith for which adequate reserves, reflected as applicable, have been established owned by them in the Company’s financial statements Financial Statements or acquired after the Balance Sheet Date free and clear of all liabilities, obligations and Encumbrances. Xxxxx.xxx or such Xxxxx.xxx Subsidiary, in accordance each case where it is a lessee, has the right under valid and subsisting leases to occupy, use and possess all property leased by it in connection with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not hadBusiness, and could there has not reasonably be expected occurred under any such lease any material breach, violation or default by Xxxxx.xxx or such Xxxxx.xxx Subsidiary, and Xxxxx.xxx or such Xxxxx.xxx Subsidiary has not experienced any material uninsured damage or destruction with respect to have, a Company Material Adverse Effectsuch properties since the Balance Sheet Date. The real property listed All properties and assets used by Sellers in Section 3.25 of connection with the Company Disclosure Schedule constitutes all of the real property owned, used or occupied by the Company or any of its subsidiaries as of the date hereof. The Company’s and each of its subsidiaries’ buildings, equipment and other tangible assets Business are in good operating condition and repair (normal subject to ordinary wear and tear excepted)tear) suitable for immediate use in the ordinary course of the Business and comply in all material respects with all Requirements of Laws relating thereto now in effect. All material Sellers enjoy peaceful and undisturbed possession under all leases pursuant for the use of all property relating to the Business under which any of them is the lessee, and all leases to which the Company or any of its subsidiaries are Seller is a party are in good standing, valid and effective binding obligations of such Seller, and to the Knowledge of Sellers, with respect to the respective third parties thereto, enforceable, in accordance with their respective termsthe terms thereof. None of Sellers are in material default with respect to any such lease, and there is not under has occurred no default by any of such leases, to the Company’s knowledge, any existing default Sellers or event of default (or event which that with notice or the lapse of timetime or the giving of notice, or both, would constitute a default)material default under any such lease. There are no Requirements of Laws, except where conditions of record, or other impediments, which interfere with the lack actual use by any Seller of such good standingany of the property leased, validity or occupied by it in connection with the Business. All leases of premises from which the Business is conducted and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effect.which are located in Australia are registered. 303
Appears in 1 contract
Properties and Assets. The Company Graphite and its subsidiaries Subsidiaries have good and valid marketable title to, or, in the case of leased properties and assets, valid leasehold interests in, all of their material tangible properties or the legal right to use, and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, hold free and clear of any all Liens and Encumbrances, all of the assets, properties and leasehold interests reflected in the Financial Statements (other than Permitted Liensthe "Assets"), except (a) for such as are no longer used those sold or useful in the conduct of their businesses or as have been otherwise disposed of in since the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 date of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising Financial Statements in the ordinary course of business of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes practice and not yet due in violation of this Agreement. All Assets of Graphite and payable or which its Subsidiaries that are otherwise being contested in good faith for which adequate reserves, as applicable, have been established used in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct operations of the business of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not had, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied by the Company or any of its subsidiaries as of the date hereof. The Company’s and each of its subsidiaries’ buildings, equipment and other tangible assets their respective businesses are in good operating condition (and repair, subject to normal wear and tear excepted)tear. All Graphite and its Subsidiaries have delivered to BPK or otherwise made available, correct and complete copies of all leases, subleases and other material leases pursuant agreements or other material instruments relating to all real property used in conducting the businesses of Graphite and the Subsidiaries to which Graphite or the Company Subsidiaries is a party (collectively, the "Real Property"), all of which are identified on Schedule 3.7. There are no pending or, to Graphite's or any of the Subsidiaries' knowledge, threatened condemnation proceedings relating to any of the Real Property. Except as set forth on Schedule 3.7, none of the real property improvements (including leasehold improvements), equipment and other Assets owned or used by Graphite or its subsidiaries Subsidiaries is subject to any commitment or other arrangement for their sale or use by any Affiliate of Graphite or its Subsidiaries, or by third parties. To the Knowledge of each Principal Shareholder, the leased real estate is free and clear of any zoning or use or building restriction or any pending, proposed or threatened zoning or use or building restriction which would interfere with the present or any intended use by Graphite of any of such leased real estate. Said leases are a party are in good standing, valid and effective binding and in accordance with their respective termsfull force and effect, and there Graphite is not in default thereunder as to the payment of rent or otherwise. The consummation of the transactions contemplated by this Agreement will not constitute an event of default under any of such leases, to said leases and the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standingcontinuation, validity and effectiveness or the existence of such default or event of default would leases will not reasonably be expected to have a Company Material Adverse Effectadversely affected by the transactions contemplated by this Agreement.
Appears in 1 contract
Properties and Assets. The (a) Except for inventory sold since the date of the Balance Sheet in the Ordinary Course of Business, the Company and each of its subsidiaries have good and valid title to, or, in the case of leased properties and assetsSubsidiaries has good, valid and marketable title to or a leasehold interests interest in, all of their material tangible properties and assetsassets (real, real personal and personalmixed, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet tangible and intangible), wherever located, that it purports to own, including all of the Company properties and its subsidiaries as of December 31, 2004 or acquired thereafter, assets which are reflected in the Balance Sheet. All such owned properties and assets are held free and clear of any Liens all Security Interests other than (i) Security Interests the existence of which is reflected in the Balance Sheet; (ii) with respect to real property, liens of mechanics, materialmen, carriers and like persons, all of which are not yet due and payable; (iii) with respect to real property, covenants, restrictions, easements, encroachments, rights of way or other minor imperfections of title (other than Permitted Liens)a Security Interest securing any indebtedness) that materially detract from the value of or impair the current or continued occupancy, except (a) for such as are no longer used operation or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 use of the Company Disclosure Schedule. For purposes of this Agreement, property subject thereto or impair the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business operations of the Company or any subsidiary consistent with past practice, of its Subsidiaries; and (iiiv) Liens liens for taxes current Taxes not yet due due. The Company and payable each of its Subsidiaries holds under valid and enforceable lease agreements all personal properties being held under capitalized leases and all personal property that is subject to operating leases and enjoys peaceful and undisturbed possession of such properties under such leases, and there exists no default or which are otherwise being contested in good faith for which adequate reservesevent which, as applicablewith notice or lapse of time or both, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principleswould constitute a default under such leases, (iii) Liens which do notother than defaults which, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not had, had and could would not reasonably be expected likely to have, have a Company Material Adverse EffectEffect on the Company. The real property listed in Section 3.25 Company has not received any written notice of any adverse claim to the Company Disclosure Schedule constitutes all of the real property owned, used or occupied title to any personal properties owned by the Company or any of its subsidiaries as of the date hereof. The Company’s and each of its subsidiaries’ buildings, equipment and other tangible assets Subsidiaries or with respect to any lease under which any personal properties are in good operating condition (normal wear and tear excepted). All material leases pursuant to which held by the Company or its Subsidiaries, other than any of its subsidiaries are a party are claims that, individually or in good standingthe aggregate, valid have not had and effective in accordance with their respective terms, and there is not under any of such leases, to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected likely to have a Company Material Adverse EffectEffect on the Company. The rights, properties and other assets presently owned, leased or licensed by the Company or its Subsidiaries include all such rights, properties and other assets necessary to permit the Company and its Subsidiaries to conduct their respective businesses in all material respects as currently conducted.
Appears in 1 contract
Properties and Assets. The Company and its subsidiaries have good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful in the conduct Schedule 2.12(a) sets forth a true, complete and correct list of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not had, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied owned by the Company or any of its subsidiaries as of the date hereof. The Company’s and each of its subsidiaries’ buildings, equipment and other tangible assets are in good operating condition Subsidiaries (normal wear and tear excepted). All material leases including any real property subject to (i) an installment sale contract pursuant to which the Company or any of its subsidiaries Subsidiaries will acquire fee simple title to the applicable real property upon compliance with the terms of such installment sale contract or (ii) a lease between the Company, as tenant, and a governmental agency, as landlord, in connection with bond financing pursuant to which the Company has an option to purchase the applicable real property and which lease may be terminated by the Company, as tenant, upon payment of the bonds (a “Bond Lease”)) (which real property, together with all appurtenances thereto, all Improvements thereon and all fixtures affixed thereto, collectively, the “Owned Real Property”) and all real property leased by the Company and any of its Subsidiaries (which real property, together with all appurtenances thereto, all Improvements thereon and all fixtures affixed thereto, collectively, the “Leased Real Property”). The Company and each of its Subsidiaries, respectively, have (x) good and valid fee simple title (subject only to Permitted Liens or the terms of the applicable installment sale contract or Bond Lease) to all of the Owned Real Property and good and valid title (subject only to Permitted Liens or the terms of the applicable installment sale contract or Bond Lease) to all inventories, furnishings, fixtures, vehicles, equipment, machinery, supplies and all other tangible personal property and Assets physically located at, or used in connection with, the Owned Real Property (other than the Leased Personalty) (collectively, the “Owned Personalty”), all of which is reflected on the Balance Sheet or which has been acquired since the Balance Sheet Date, and (y) valid and insurable leasehold interests and estates in the Leased Real Property and good and valid title (subject only to Permitted Liens) to all inventories, furnishings, fixtures, vehicles, equipment, machinery, supplies and all other tangible personal property and Assets physically located at, or used in connection with, the Leased Real Property (other than the Leased Personalty) (collectively, the “Other Personalty” and together with the Owned Personalty, collectively, the 37 “Personalty”), all of which is reflected on the Balance Sheet or which has been acquired since the Balance Sheet Date. The Company and the Subsidiaries hold title to the Owned Real Property and the Personalty and leasehold estates in the Leased Real Property which are, in each case, free and clear of all Liens except for: (1) Liens consisting of zoning or planning restrictions, easements, agreements, rights-of-way, covenants, permits and other restrictions or limitations on the use of real property or irregularities in title thereto appearing of record provided they do not materially impair the use of such property as it is presently used in the Ordinary Course of Business; (2) Liens for current Taxes not yet due and payable or which are a party are being contested in good standing, valid faith and effective for which appropriate reserves in accordance with their respective termsGAAP have been created; (3) mechanic’s, materialmen’s and there is similar Liens arising in the Ordinary Course of Business (including by operation of Law) which are not under any yet due and payable or which are being contested in good faith and for which appropriate reserves in accordance with GAAP have been created; (4) standard exceptions which would be contained in an ALTA Form extended coverage owner’s policy of such leasestitle insurance (or the locally available form of title insurance policy, as applicable) relating to (A) laws, ordinances and governmental regulations, (B) police power and (C) eminent domain, in each instance, to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, extent the same would not constitute a defaultmaterial breach of the other representations made by the Company under this Agreement; (5) any Liens granted pursuant to or permitted under the Credit Facility and the Notes (including Liens for after-acquired collateral); and (6) any Liens set forth on Schedule 2.12(a)(6) hereto (collectively, except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effect“Permitted Liens”).
Appears in 1 contract
Properties and Assets. The Company and its subsidiaries have good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 2006 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) business and except for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a materially interfere with or impair the operation of the business of the Company Material Adverse Effect and or any of its subsidiaries, except (ci) as set forth in Section 3.25 3.23 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s 's financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not had, and could not reasonably be expected to have, a Company Material Adverse Effect. Except as set forth in Section 3.23 of the Company Disclosure Schedule, neither the Company nor any of its subsidiaries owns any real property. The real property listed in Section 3.25 3.23 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied by the Company or any of its subsidiaries as of the date hereof. The Company’s 's and each of its subsidiaries’ ' buildings, equipment and other tangible assets are in good operating condition (normal wear and tear excepted). All material leases pursuant to which the Company or any of its subsidiaries are a party are in good standing, valid and effective in accordance with their respective terms, and there is not under any of such leases, to the Company’s 's knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would could not reasonably be expected to have a materially interfere with or impair the operation of the business of the Company Material Adverse Effector any of its subsidiaries.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Mity Enterprises Inc)
Properties and Assets. The Company and its subsidiaries have good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful in the conduct Schedule 2.12(a) sets forth a true, complete and correct list of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not had, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property listed in Section 3.25 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied owned by the Company or any of its subsidiaries as of the date hereof. The Company’s and each of its subsidiaries’ buildings, equipment and other tangible assets are in good operating condition Subsidiaries (normal wear and tear excepted). All material leases including any real property subject to (i) an installment sale contract pursuant to which the Company or any of its subsidiaries Subsidiaries will acquire fee simple title to the applicable real property upon compliance with the terms of such installment sale contract or (ii) a lease between the Company, as tenant, and a governmental agency, as landlord, in connection with bond financing pursuant to which the Company has an option to purchase the applicable real property and which lease may be terminated by the Company, as tenant, upon payment of the bonds (a “Bond Lease”)) (which real property, together with all appurtenances thereto, all Improvements thereon and all fixtures affixed thereto, collectively, the “Owned Real Property”) and all real property leased by the Company and any of its Subsidiaries (which real property, together with all appurtenances thereto, all Improvements thereon and all fixtures affixed thereto, collectively, the “Leased Real Property”). The Company and each of its Subsidiaries, respectively, have (x) good and valid fee simple title (subject only to Permitted Liens or the terms of the applicable installment sale contract or Bond Lease) to all of the Owned Real Property and good and valid title (subject only to Permitted Liens or the terms of the applicable installment sale contract or Bond Lease) to all inventories, furnishings, fixtures, vehicles, equipment, machinery, supplies and all other tangible personal property and Assets physically located at, or used in connection with, the Owned Real Property (other than the Leased Personalty) (collectively, the “Owned Personalty”), all of which is reflected on the Balance Sheet or which has been acquired since the Balance Sheet Date, and (y) valid and insurable leasehold interests and estates in the Leased Real Property and good and valid title (subject only to Permitted Liens) to all inventories, furnishings, fixtures, vehicles, equipment, machinery, supplies and all other tangible personal property and Assets physically located at, or used in connection with, the Leased Real Property (other than the Leased Personalty) (collectively, the “Other Personalty” and together with the Owned Personalty, collectively, the “Personalty”), all of which is reflected on the Balance Sheet or which has been acquired since the Balance Sheet Date. The Company and the Subsidiaries hold title to the Owned Real Property and the Personalty and leasehold estates in the Leased Real Property which are, in each case, free and clear of all Liens except for: (1) Liens consisting of zoning or planning restrictions, easements, agreements, rights-of-way, covenants, permits and other restrictions or limitations on the use of real property or irregularities in title thereto appearing of record provided they do not materially impair the use of such property as it is presently used in the Ordinary Course of Business; (2) Liens for current Taxes not yet due and payable or which are a party are being contested in good standing, valid faith and effective for which appropriate reserves in accordance with their respective termsGAAP have been created; (3) mechanic’s, materialmen’s and there is similar Liens arising in the Ordinary Course of Business (including by operation of Law) which are not under any yet due and payable or which are being contested in good faith and for which appropriate reserves in accordance with GAAP have been created; (4) standard exceptions which would be contained in an ALTA Form extended coverage owner’s policy of such leasestitle insurance (or the locally available form of title insurance policy, as applicable) relating to (A) laws, ordinances and governmental regulations, (B) police power and (C) eminent domain, in each instance, to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, extent the same would not constitute a defaultmaterial breach of the other representations made by the Company under this Agreement; (5) any Liens granted pursuant to or permitted under the Credit Facility and the Notes (including Liens for after-acquired collateral); and (6) any Liens set forth on Schedule 2.12(a)(6) hereto (collectively, except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effect“Permitted Liens”).
Appears in 1 contract
Properties and Assets. The Company and its subsidiaries have good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such Except as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could would not reasonably be expected to have a Company Royale Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this AgreementEffect, the term “Royale Parties and their subsidiaries own and have either good and valid title in fee or a valid leasehold interest, Right of Way or other rights to the land, mineral and other subsurface rights, buildings, structures and other improvements thereon and fixtures thereto necessary to permit it to conduct its business as currently conducted, in each case free and clear of all liens (except in all cases for Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, ). Except as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not had, and could would not reasonably be expected to havehave a Royale Material Effect, a Company Material Adverse Effect. The real property listed in Section 3.25 all leases, Rights of the Company Disclosure Schedule constitutes all of the real property owned, used Way or occupied by the Company other agreements under which any Royale Party or any of its subsidiaries as of the date hereof. The Company’s their Subsidiaries lease, access or use any real property are valid, binding and each of its subsidiaries’ buildings, equipment and other tangible assets are in good operating condition (normal wear force and tear excepted). All material leases pursuant to which effect against the Company Royale Parties or any of its subsidiaries are a party are in good standingtheir Subsidiaries and, valid and effective to the Knowledge of each Royale Party, the counterparties thereto, in accordance with their respective terms, and there is not neither the Royale Parties nor any of their Subsidiaries are in default under any of such leases, Rights of Way or other agreements. (b) Each Royale Party and its Subsidiaries has such consents, easements, rights of way, permits and licenses (collectively, “Rights of Way”) from each person as are sufficient to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default)conduct its business as currently conducted, except where for such Rights of Way the lack absence of such good standing, validity which have not had and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Royale Material Adverse Effect.. Each Royale Party and its Subsidiaries has fulfilled and performed all its material obligations with respect to such Rights of Way and conducts their business in a manner that does not violate any of the Rights of Way, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or would result in any impairment of the rights of the holder of any such Rights of Way, except for such revocations, terminations and impairments that have not had and would not reasonably be expected to have a Royale Material Adverse Effect. All pipelines owned or operated by the Royale Parties and their Subsidiaries are subject to Rights of Way, there are no encroachments or other encumbrances on the Rights of Way that materially affect the use thereof and there are no gaps (including any gap arising as a result of any breach by a Royale Party or any of their Subsidiaries of the terms of any Rights of Way) in the Rights of way other than gaps that would not have and would not reasonably be expected to have a Royale Material Adverse Effect. (c) Except as would not reasonably be expected to have a Royale Material Adverse Effect, the Royale Parties and their Subsidiaries, as applicable, have defensible title to all of the Royale Interests forming the basis for the reserves reflected in the Royale Financial Statements except for such Royale Interests sold, used, farmed out or otherwise disposed of since December 31, 2015, in the ordinary course of business, free and clear of all liens and Production Burdens other than Production Burdens not yet earned, due or payable and Permitted Liens (other than Production Burdens). Except as would not reasonably be expected to have a Royale Material Adverse Effect or as set forth on Section 5.10(c) of the Disclosure Schedules, (i) none of the proceeds from the sale of Hydrocarbons produced from the Royale Interests in any producing well are being held in suspense for any reason, and (ii) there are no calls on production or preferential rights to purchase Hydrocarbons and the Royale Parties nor any of their Subsidiaries are not obligated to deliver Hydrocarbons or proceeds from the sale thereof at a future point in time without receiving payment therefor at or after the time of delivery (other than gas balancing arrangements), except for the rights of any lessor to take free gas under the terms of any applicable lease for its use on the lands covered by such lease. Except as would not reasonably 25 be expected to have a Royale Material Adverse Effect, the Royale Parties and each applicable Subsidiary (A) are in compliance with all valuation agreements, and settlement agreements with respect to Production Burdens, and (B) have paid or will cause to be paid when due all Production Burdens with respect to the Royale Interests and each other royalty, Tax or similar payment, except for such amounts that are being held in suspense as permitted pursuant to applicable Law or the terms of the applicable Contract or as reserved against in the Royale Financial Statements. (d) All of the xxxxx owned, leased, operated or used by the Royale Parties and their Subsidiaries and all water, carbon dioxide or injection xxxxx located on any property owned, leased, operated or used by the Royale Parties and their Subsidiaries or otherwise associated with the Royale Interests have been drilled, completed and operated within the limits permitted by the applicable Contract granting such rights and applicable Law, and all drilling and completion (and plugging and abandonment) of such xxxxx and all related development, production and other operations have been conducted in compliance with all applicable Laws except, in each case, as would not reasonably be expected to have a Royale Material Adverse Effect. No well owned, leased, operated or used by any Royale Party or any of their Subsidiaries are subject to material penalties on allowables because of overproduction or violation of any applicable Law. (e) All Royale Interests operated by the Royale Parties and their Subsidiaries have been operated in accordance with reasonable, prudent field practices and in compliance with the applicable Contracts, except where the failure to so operate would not reasonably be expected to have a Royale Material Adverse Effect. None of the Interests of the Royale Parties or their Subsidiaries is subject to any preferential purchase, consent or similar right that would become operative as a result of the Transactions, except for any such preferential purchase, consent or similar rights that would not reasonably be expected to have a Royale Material Adverse Effect. Except as set forth on Section 5.10(e) of Disclosure Schedules, none of the Royale Interests are subject to any Tax partnership agreement or provisions requiring a partnership income Tax Return. (f) There are no material inaccuracies in the report of Netherland, Xxxxxx & Associates, Inc. as of December 31, 2015, and dated February 1, 2016. (g) Except as set forth on Section 5.10(g) of the Disclosure Schedules, no Royale Party is engaged in any oil, natural gas or other futures or option trading in respect of which it has any material future liability, nor is any Royale Party a party to any price swaps, xxxxxx, futures or similar instruments. Section 5.10(g) of the Disclosure Schedules sets forth obligations of each Royale Party for the delivery of Hydrocarbons attributable to any of the Royale Interests in the future on account of prepayment, advance payment, take-or-pay or similar obligations without then or thereafter being entitled to receive full value therefor. Except as set forth on Section 5.10(g) of the Disclosure Schedules, as of the date hereof, no Royale Party is bound by futures, hedge, swap, collar, put, call, floor, cap, option or other Contracts that are intended to benefit from, relate to or reduce or eliminate the risk of fluctuations in the price of commodities, including Hydrocarbons, or securities. (h) Except as provided in Section 5.10(h) of the Disclosure Schedules, there are no mandatory drilling or completion obligations and there are no pending or, to the Knowledge of 26 each Royale Party, expected proposals or elections for drilling, completing, recompleting, reworking, facilities or similar activities that would require such commitment on behalf of the Royale Parties or any of their Subsidiaries within one year of the Royale Merger Effective Time in any of the Royale Interests or any of the contracts governing any of the Royale Interests. (i) Except as set forth on Section 5.10(i) of the Disclosure Schedules, none of the Contracts in respect of gathering, processing, storage or transportation of the production of Hydrocarbons from the Royale Interests contain any minimum volume or throughput provisions or require the Royale Parties or any of their Subsidiaries to pay for services regardless of whether the Royale Parties or any of their Subsidiaries deliver such production for use of the services provided for under any such Contract. (j) Except as set forth in Section 5.10(j) of the Disclosure Schedules, none of the Contracts relating to the Royale Interests (including all oil, gas and mineral leases and similar Contracts) contain any provision (i) requiring the lessee to pay royalties on xxxxxx, (ii) causing the oil, gas or mineral lease or contract to terminate without advance notice and the opportunity to cure resulting in a loss, in whole or in part, of any of the Royale Interests for lessee’s failure to pay royalties or for lessee’s breach of any covenant thereunder, (iii) requiring lessor’s consent to the consummation of the transactions of the type contemplated under this Agreement, or (iv) is expected to result in a mandatory payment or expenditure not otherwise disclosed in Section 5.10(j) of the Disclosure Schedules. Section 5.11
Appears in 1 contract
Samples: Debt Exchange Agreement
Properties and Assets. The Company and its subsidiaries have good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 2002 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) business and except for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect Effect, free and clear of any Liens, except (ci) as set forth in Section 3.25 3.24 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not had, and could would not reasonably be expected to have, result in a Company Material Adverse Effect. Neither the Company nor any of its subsidiaries owns any real property, except as set forth in Section 3.24 of the Company Disclosure Schedule. The real property listed in Section 3.25 3.24 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied by the Company or any of its subsidiaries as of the date hereof. The Company’s and each of its subsidiaries’ buildings, equipment and other tangible assets are in good operating condition (normal wear and tear excepted). All material leases pursuant to which the Company or any of its subsidiaries are a party are in good standing, valid and effective in accordance with their respective terms, and there is not under any of such leases, to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Concerto Software Inc)
Properties and Assets. The Company and its subsidiaries have good and valid title toNone of Edify, or, in the case of leased properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used Edify Holding or held for use in their businesses located on their premises or shown on the consolidated balance sheet any of the Company Subsidiaries owns any real property. Section 3.14 of the Edify Disclosure Schedule lists (i) each real property lease, sublease or installment purchase arrangement to which Edify, Edify Holding or any Subsidiary is a party; (ii) all items of tangible personal property and its subsidiaries as equipment owned by Edify, Edify Holding or any Subsidiary with a book value of December 31, 2004 $100,000 or acquired thereafter, free more or having any annual lease payment of $100,000 or more; and clear (iii) those computer servers described on Section 3.14 of any Liens (other than Permitted Liens), except the Edify Disclosure Schedule. Except for (a) for such as are no longer used or useful liens, claims, charges and other encumbrances reflected in the conduct of their businesses or as have been disposed of Financial Statements referred to in the ordinary course of businessSection 3.5 hereof, (b) for defects in titleexceptions to title that do not materially interfere with Edify’s, easementsEdify Holding’s or any Subsidiary’s use and enjoyment of leased real property, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth contractual and/or statutory landlord’s liens and liens for current real estate taxes not yet delinquent, or being contested in Section 3.25 of good faith, properly reserved against (and reflected on the Company Disclosure Schedule. For purposes of this AgreementFinancial Statements), the term “Permitted Liens” means (id) inchoate mechanics’ properties and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising assets sold or transferred in the ordinary course of business of the Company or any subsidiary consistent with past practicepractices, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (ive) all matters of record and Liens which have not had, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property items listed in Section 3.25 3.14 of the Company Edify Disclosure Schedule constitutes Schedule, Edify, Edify Holding and the Subsidiaries have good and marketable title to all of their properties and assets, reflected in the real Financial Statements, free and clear of all liens, claims, charges and other encumbrances. Edify, Edify Holding and the Subsidiaries, as lessees, have the right under valid and subsisting leases to occupy, use and possess all property ownedleased by them for the purposes for which they are currently being used, used and there has not occurred under any such lease any material breach, violation or occupied default by the Company Edify, Edify Holding or any Subsidiary, and none of its subsidiaries Edify, Edify Holding or any Subsidiary has experienced any material uninsured damage or destruction with respect to such properties except as disclosed in Section 3.14 of the date hereofEdify Disclosure Schedule. The Company’s All properties and each of its subsidiaries’ buildingsassets used by Edify, equipment and other tangible assets Edify Holding or any Subsidiary are in good operating condition and repair (normal subject to ordinary wear and tear exceptedtear). All material Edify, Edify Holding and the Subsidiaries enjoy peaceful and undisturbed possession under all leases pursuant for the use of all property under which they are the lessee, and all leases to which the Company Edify, Edify Holding or any of its subsidiaries are Subsidiary is a party are in good standing, valid and effective binding obligations of Edify, Edify Holding or such Subsidiary, and (to the knowledge of S1, Edify, Edify Holding and the Subsidiaries) with respect to the respective third parties thereto, enforceable, in accordance with their respective termsthe terms thereof. None of Edify, Edify Holding or any Subsidiary is in default with respect to any such lease, and there is not under has occurred no default by Edify, Edify Holding or any of such leases, to the Company’s knowledge, any existing default or event of default (Subsidiary or event which with notice or the lapse of timetime or the giving of notice, or both, would constitute a default)material breach, except where violation or default under any such lease. To the lack knowledge of such good standingthe Edify Group, validity and effectiveness there are no Laws, conditions of record, or other impediments which materially interfere with the intended use by Edify, Edify Holding or any Subsidiary of any of the property owned, leased, or occupied by it. None of Edify, Edify Holding nor the Subsidiaries has received any written (or to the knowledge of the Edify Group, oral) notice alleging that it is in default or asserting that it is violating any applicable Law pertaining to the leases. To the knowledge of the Edify Group, each of the subleases to which Edify, Edify Holding or the existence Subsidiaries are a party as sublessor is in full force and effect and has received all necessary approvals from the master landlords. None of Edify, Edify Holding or any Subsidiary is in default under any sublease, nor to S1’s, Edify’s, Edify Holding’s or any of the Subsidiaries’ knowledge, is any sublessee in default under any such default subleases, and none of Edify, Edify Holding or any of the Subsidiaries know of any act, omission, condition or event which with the lapse of time or the giving of notice, or both, would constitute a material default would not reasonably be expected to have a Company Material Adverse Effectunder any such subleases.
Appears in 1 contract
Properties and Assets. The Company and its subsidiaries --------------------- have good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 3130, 2004 2000 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (ci) as set forth in Section 3.25 4.20 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s 's financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not had, and could would not reasonably be expected to have, result in a Company Material Adverse Effect. Neither the Company nor any of its subsidiaries owns any real property, except as set forth in Section 4.20 of the Company Disclosure Schedule. The real property listed in Section 3.25 4.20 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied by the Company or any of its subsidiaries as of the date hereof. The Except as set forth in Section 4.20 of the Company Disclosure Schedule, the Company’s 's and each of its subsidiaries’ Company subsidiary's buildings, equipment and other tangible assets are in good operating condition (normal wear and tear excepted)) and are fit for use in the ordinary course of their respective business. All material To the knowledge of the Company, all leases pursuant to which the Company or any of its subsidiaries are a party lease from others material amounts of real property are in good standing, valid full force and effective effect as to the Company in accordance with their respective terms, and there is not under any of such leases, to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default)) of or by the Company, except where the lack of such good standing, validity being in full force and effectiveness effect or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Agreement and Plan of Merger (FLD Acquisition Corp)
Properties and Assets. The Company and its subsidiaries have good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 3130, 2004 2000 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (ci) as set forth in Section 3.25 4.20 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s 's financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not had, and could would not reasonably be expected to have, result in a Company Material Adverse Effect. Neither the Company nor any of its subsidiaries owns any real property, except as set forth in Section 4.20 of the Company Disclosure Schedule. The real property listed in Section 3.25 4.20 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied by the Company or any of its subsidiaries as of the date hereof. The Except as set forth in Section 4.20 of the Company Disclosure Schedule, the Company’s 's and each of its subsidiaries’ Company subsidiary's buildings, equipment and other tangible assets are in good operating condition (normal wear and tear excepted)) and are fit for use in the ordinary course of their respective business. All material To the knowledge of the Company, all leases pursuant to which the Company or any of its subsidiaries are a party lease from others material amounts of real property are in good standing, valid full force and effective effect as to the Company in accordance with their respective terms, and there is not under any of such leases, to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default)) of or by the Company, except where the lack of such good standing, validity being in full force and effectiveness effect or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Full Line Distributors Inc)
Properties and Assets. The Company and its subsidiaries have good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 2006 or acquired thereafter, free and clear of any Liens (other than Permitted Liens), except (a) for such as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) business and except for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a materially interfere with or impair the operation of the business of the Company Material Adverse Effect and or any of its subsidiaries, except (ci) as set forth in Section 3.25 3.23 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any subsidiary consistent with past practice, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (iv) all matters of record and Liens which have not had, and could not reasonably be expected to have, a Company Material Adverse Effect. Except as set forth in Section 3.23 of the Company Disclosure Schedule, neither the Company nor any of its subsidiaries owns any real property. The real property listed in Section 3.25 3.23 of the Company Disclosure Schedule constitutes all of the real property owned, used or occupied by the Company or any of its subsidiaries as of the date hereof. The Company’s and each of its subsidiaries’ buildings, equipment and other tangible assets are in good operating condition (normal wear and tear excepted). All material leases pursuant to which the Company or any of its subsidiaries are a party are in good standing, valid and effective in accordance with their respective terms, and there is not under any of such leases, to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default), except where the lack of such good standing, validity and effectiveness or the existence of such default or event of default would could not reasonably be expected to have a materially interfere with or impair the operation of the business of the Company Material Adverse Effector any of its subsidiaries.
Appears in 1 contract
Properties and Assets. The Company and its subsidiaries have good and valid title toNone of Edify, or, in the case of leased properties and assets, valid leasehold interests in, all of their material tangible properties and assets, real and personal, used Edify Holding or held for use in their businesses located on their premises or shown on the consolidated balance sheet any of the Company Subsidiaries owns any real property. Section 3.14 of the Edify Disclosure Schedule lists (i) each real property lease, sublease or installment purchase arrangement to which Edify, Edify Holding or any Subsidiary is a party; (ii) all items of tangible personal property and its subsidiaries as equipment owned by Edify, Edify Holding or any Subsidiary with a book value of December 31, 2004 $100,000 or acquired thereafter, free more or having any annual lease payment of $100,000 or more; and clear (iii) those computer servers described on Section 3.14 of any Liens (other than Permitted Liens), except the Edify Disclosure Schedule. Except for (a) for such as are no longer used or useful liens, claims, charges and other encumbrances reflected in the conduct of their businesses or as have been disposed of Financial Statements referred to in the ordinary course of businessSection 3.5 hereof, (b) for defects in titleexceptions to title that do not materially interfere with Edify's, easementsEdify Holding's or any Subsidiary's use and enjoyment of leased real property, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth contractual and/or statutory landlord's liens and liens for current real estate taxes not yet delinquent, or being contested in Section 3.25 of good faith, properly reserved against (and reflected on the Company Disclosure Schedule. For purposes of this AgreementFinancial Statements), the term “Permitted Liens” means (id) inchoate mechanics’ properties and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising assets sold or transferred in the ordinary course of business of the Company or any subsidiary consistent with past practicepractices, (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens which do not, individually or in the aggregate, materially interfere with or materially impair the conduct of the business of the Company or any of its subsidiaries and (ive) all matters of record and Liens which have not had, and could not reasonably be expected to have, a Company Material Adverse Effect. The real property items listed in Section 3.25 3.14 of the Company Edify Disclosure Schedule constitutes Schedule, Edify, Edify Holding and the Subsidiaries have good and marketable title to all of their properties and assets, reflected in the real Financial Statements, free and clear of all liens, claims, charges and other encumbrances. Edify, Edify Holding and the Subsidiaries, as lessees, have the right under valid and subsisting leases to occupy, use and possess all property ownedleased by them for the purposes for which they are currently being used, used and there has not occurred under any such lease any material breach, violation or occupied default by the Company Edify, Edify Holding or any Subsidiary, and none of its subsidiaries Edify, Edify Holding or any Subsidiary has experienced any material uninsured damage or destruction with respect to such properties except as disclosed in Section 3.14 of the date hereofEdify Disclosure Schedule. The Company’s All properties and each of its subsidiaries’ buildingsassets used by Edify, equipment and other tangible assets Edify Holding or any Subsidiary are in good operating condition and repair (normal subject to ordinary wear and tear exceptedtear). All material Edify, Edify Holding and the Subsidiaries enjoy peaceful and undisturbed possession under all leases pursuant for the use of all property under which they are the lessee, and all leases to which the Company Edify, Edify Holding or any of its subsidiaries are Subsidiary is a party are in good standing, valid and effective binding obligations of Edify, Edify Holding or such Subsidiary, and (to the knowledge of S1, Edify, Edify Holding and the Subsidiaries) with respect to the respective third parties thereto, enforceable, in accordance with their respective termsthe terms thereof. None of Edify, Edify Holding or any Subsidiary is in default with respect to any such lease, and there is not under has occurred no default by Edify, Edify Holding or any of such leases, to the Company’s knowledge, any existing default or event of default (Subsidiary or event which with notice or the lapse of timetime or the giving of notice, or both, would constitute a default)material breach, except where violation or default under any such lease. To the lack knowledge of such good standingthe Edify Group, validity and effectiveness there are no Laws, conditions of record, or other impediments which materially interfere with the intended use by Edify, Edify Holding or any Subsidiary of any of the property owned, leased, or occupied by it. None of Edify, Edify Holding nor the Subsidiaries has received any written (or to the knowledge of the Edify Group, oral) notice alleging that it is in default or asserting that it is violating any applicable Law pertaining to the leases. To the knowledge of the Edify Group, each of the subleases to which Edify, Edify Holding or the existence Subsidiaries are a party as sublessor is in full force and effect and has received all necessary approvals from the master landlords. None of Edify, Edify Holding or any Subsidiary is in default under any sublease, nor to S1's, Edify's, Edify Holding's or any of the Subsidiaries' knowledge, is any sublessee in default under any such default subleases, and none of Edify, Edify Holding or any of the Subsidiaries know of any act, omission, condition or event which with the lapse of time or the giving of notice, or both, would constitute a material default would not reasonably be expected to have a Company Material Adverse Effectunder any such subleases.
Appears in 1 contract
Properties and Assets. SCHEDULE 4.15 hereto sets forth a complete and correct list of (a) all real property owned by the Company, (b) any lease pursuant to which the Company is the lessee of real property and (c) each item of tangible personal property used in or relating to the conduct of the business of the Company that has been capitalized for accounting purposes. The Company and its subsidiaries have has (a) good and valid title toto all of its personal assets and property, orincluding, without limitation, all those listed on SCHEDULE 4.15, reflected in the case Interim Financials or acquired after the date of leased properties the Interim Balance Sheet (except for inventories and assetsother assets sold or otherwise disposed of in the Ordinary Course of Business since such date), and (b) good and marketable title to all the real property listed in SCHEDULE 4.15 as owned by it, and valid leasehold interests inin all real properties listed in SCHEDULE 4.15 as leased by it, all of their material tangible properties and assets, real and personal, used or held for use in their businesses located on their premises or shown on the consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 or acquired thereafter, each case free and clear of any Liens (all Encumbrances other than Permitted Liens), except (a) for such as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business, (b) for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect and (c) as set forth in Section 3.25 of the Company Disclosure Schedule. For purposes of this Agreement, the term “Permitted Liens” means (i) inchoate mechanics’ and materialmen’s Liens for construction in progress, and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising those reflected in the ordinary course of business of the Company Interim Financials or any subsidiary consistent with past practice, listed in SCHEDULE 4.15 and (ii) Liens for taxes not yet due and payable or which are otherwise being contested in good faith for which adequate reserves, as applicable, have been established in the Company’s financial statements in accordance with United States generally accepted accounting principles, (iii) Liens those which do not, individually or in the aggregate, (x) materially interfere with or materially impair the conduct of the business of the Company or any operation of its subsidiaries and business as presently conducted or (ivy) all matters of record and Liens which have not hadotherwise have, and or could not reasonably be expected to have, a Company Material Adverse Effect. The Company enjoys peaceful and undisturbed possession under all real property listed in Section 3.25 leases under which it operates. The Company has not received written notice that the ownership or lease of real property by the Company Disclosure Schedule constitutes all and the use thereof, as presently used by the Company, violates any local zoning or similar land use laws or governmental regulations. The Company has not received written notice of violation of or noncompliance with any covenant, condition, restriction, order or easement affecting the real property ownedowned or leased by the Company. The Company has not received written notice of condemnation or threatened condemnation affecting the real property owned or leased by it. The Company has made available to the Purchaser complete and correct copies of the lease agreements referred to in SCHEDULE 4.15. The personal property, used equipment, plants, buildings, structures, facilities and all other assets and properties that will be owned or occupied leased by the Company or any of its subsidiaries as of after the date hereof. The Company’s and each of its subsidiaries’ Closing Date will include all personal property, equipment, plants, buildings, equipment structures, facilities and all other tangible assets are in good operating condition (normal wear and tear excepted). All material leases pursuant properties necessary to which permit the Company or any of to conduct its subsidiaries are a party are in good standing, valid and effective in accordance with their respective terms, and there is not under any of such leases, to the Company’s knowledge, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default)business as presently conducted, except where the lack of for such good standing, validity and effectiveness or the existence of such default or event of default would not reasonably be expected to have a Company Material Adverse Effectchanges as are permitted by SECTION 6.2.
Appears in 1 contract
