Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. (b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property. (c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. (d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect. (e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). (f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 6 contracts
Samples: Contribution Agreement (Otto Alexander), Contribution Agreement (Otto Alexander), Contribution Agreement (Otto Alexander)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons Each applicable Principal Controlled Entity or Subsidiary set forth on Section 4.10 Schedule 1.07(a) currently is or, in the case of each Newly Formed Entity, will be as of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is Closing Date, insured under a policy of title insurance as the owner of of, and the applicable Principal Controlled Entity or Subsidiary is (i) the owner of, the fee simple estate to each Property identified on Schedule 1.07(a)(i), and (or, ii) the holder of a co-tenancy interest in those properties listed on Schedule 1.07(a)(ii) (and the case percentage of certain Properties, the leasehold estate) of such Propertyco-tenancy interest held is listed thereon), in each case free and clear of all Liens Liens, except for Permitted Liens Liens. From the Effective Date through and Liensincluding the Closing Date, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor each applicable Principal Controlled Entity or Subsidiary or JV Entity shall not take or omit to take any action to cause any Lien to attach to any Propertythe Property owned by such entity, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectmaterial adverse effect on the business or operations of the Properties reasonably valued in excess of the Threshold Amount, (i) no Contributor Subsidiarynone of the Principal Controlled Entities, JV Entityany of their Subsidiaries, nor nor, to the Principal’s Knowledge, any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary Principal Controlled Entity or JV Entityany of their Subsidiaries, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leasesLeases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conductedTo the Principal’s Knowledge, none of the operation operations, as presently conducted, of the buildings, fixtures and other improvements comprising a part of the Properties is are in violation of any applicable building code, zoning ordinance or other law Law or regulation, except for such violations that would not, individually or in the aggregate, be reasonably be expected to have a Contributor Material Adverse Effect. Neither cost in excess of the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected Threshold Amount to have a Contributor Material Adverse Effectcure.
(d) To the Principal’s Knowledge, there is no material defect in the condition of (i) the Properties, (ii) the improvements thereon, (iii) the roof, foundation, load-bearing walls or other structural elements thereof, or (iv) the mechanical, electrical, plumbing and, safety systems therein, nor any material damage from casualty or other cause, nor any soil condition of any nature that will not support all of the improvements thereon. For this purpose, a “material defect” does not include a defect for which there are insurance proceeds readily available to correct, or as to which capital expenditures to repair or replace the defective item have been budgeted and adequately reserved and, in each case, is actively being corrected.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectmaterial adverse effect on the business or operations of the Property reasonably valued in excess of the Threshold Amount, (i) no Principal Controlled Entity or any of their Subsidiaries, nor, to the ContributorPrincipal’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the ContributorPrincipal’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries Principal Controlled Entities or the JV Entitiesany of their Subsidiaries, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary Principal Controlled Entity or any JV Entity of their Subsidiaries is a party or by which any Contributor, Contributor Subsidiary Principal Controlled Entity or JV Entity any of their Subsidiaries or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each . None of the Leases to which require the Contributor, consent or approval of any Contributor Subsidiary or any JV Entity is a party or by which in connection with the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)transactions contemplated hereunder.
(f) To Schedule 1.07(f) is a true and complete list of all Leases (together with all amendments and supplements thereto) for more than 100,000 rentable square feet of any Property (the Contributor’s Knowledge, except as previously disclosed to the Company, no “Material Leases”). No tenant under any of the Material Leases has an option or right of first refusal to purchase the premises demised under such Lease Material Leases. The consummation of the transactions contemplated hereunder will not give rise to any breach, default or any event which, but for the passage of time or the giving of notice, or both, would constitute a default under any of the Material Leases. Schedule 1.07(f) identifies in a true, correct and complete manner the following information as it relates to all Material Leases: (i) the expiration date; (ii) the rentable square footage demised thereunder, (iii) the use of the demised premises thereunder; (iv) the annualized base rent payable thereunder; (v) rent arrearages and other defaults of which the Principals have Knowledge; (vi) renewal, expansion and purchase options; and (vii) any outstanding tenant improvement allowances, brokerage commissions or other tenant inducement or similar costs applicable to such Material Lease.
(g) All equipment, fixtures and personal property located at or on any Property that is presently owned by the subject of any voluntary applicable Principal Controlled Entity or involuntary bankruptcy Subsidiary shall remain and not be removed by the Principal Controlled Entity or insolvency proceedingsSubsidiary prior to the Closing Date, except for matters equipment that would notbecomes obsolete or unusable, individually which may be disposed of or replaced in the aggregate, reasonably be expected ordinary course of business.
(h) The applicable Principal Controlled Entity or Subsidiary has not incurred any indebtedness related to have a Contributor Material Adverse Effectthe Properties except in each instance for (i) trade payables and other customary and ordinary expenses in the ordinary course of business; and (ii) financing or credit arrangements existing as of the Effective Date as set forth on Schedule 3.03(l) hereto.
Appears in 6 contracts
Samples: Contribution Agreement (Welsh Property Trust, Inc.), Contribution Agreement (Welsh Property Trust, Inc.), Contribution Agreement (Welsh Property Trust, Inc.)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any the Contributor, any Contributor Subsidiary or any JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, any JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the CompanyCompany or the Operating Partnership, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 6 contracts
Samples: Contribution Agreement (Paramount Group, Inc.), Contribution Agreement (Paramount Group, Inc.), Contribution Agreement (Paramount Group, Inc.)
Properties. (aA) The Properties are owned directly, in Operating Partnership or its subsidiaries have good and marketable title (fee simple, by the Persons set forth on Section 4.10 or leasehold) to all of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, real properties described in the case of certain PropertiesRegistration Statement, the leasehold estateGeneral Disclosure Package and the Prospectus as owned or leased by them and the improvements located thereon (individually, a “Property” and collectively, the “Properties”) of such Propertyand any other real property owned by them, in each case case, free and clear of all Liens mortgages, pledges, liens, claims, security interests, restrictions or encumbrances of any kind, except for such mortgages, pledges, liens, claims, security interests, restrictions or encumbrances as (1) are described in the Registration Statement, General Disclosure Package and the Prospectus, (2) are Permitted Liens Encumbrances or (3) would not, individually or in the aggregate, have a Material Adverse Effect; (B) all of the ground leases and Lienssubleases relating to the Properties, if any, given to secure mortgage indebtedness encumbering such Property. Prior material to the effective time business of the transactions contemplated Operating Partnership and its subsidiaries considered as one enterprise, are in this Contribution Agreementfull force and effect, no Contributor Subsidiary with such exceptions as are not material and do not materially interfere with the use made or JV Entity shall take proposed to be made of such Property by the Operating Partnership or omit any of its subsidiaries, and neither the Operating Partnership nor any of its subsidiaries has any notice of any material claim of any sort that has been asserted by anyone adverse to take the rights of the Operating Partnership or any action of its subsidiaries under any of the ground leases or subleases mentioned above, or affecting or questioning the rights of the Operating Partnership or any of its subsidiaries to cause the continued possession of the leased or subleased premises under any Lien such ground lease or sublease; (C) all liens, charges, encumbrances, claims or restrictions on or affecting any of the Properties and the assets of the Operating Partnership or any of its subsidiaries that are required to attach be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus are disclosed therein; (D) each of the Properties complies with all applicable codes, laws and regulations (including, without limitation, building and zoning codes, laws and regulations and laws relating to any Propertyaccess to the Properties), except for Permitted Liens and Liens, if any, given such failures to secure mortgage indebtedness encumbering such Property.
(b) Except for matters comply that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect; (E) the Operating Partnership does not have any knowledge of any pending or threatened condemnation proceedings, zoning change or other proceeding or action that will in any material manner affect the size of, use of, improvements on, construction on or access to the Properties, except as would not, individually or in the aggregate, have a Material Adverse Effect; (F) the mortgages and deeds of trust that encumber the Properties are not convertible into equity securities of the entity owning such Property and said mortgages and deeds of trust are not cross-defaulted or cross-collateralized with any property other than other Properties; (G) the Operating Partnership, directly or indirectly, has obtained title insurance on the fee or leasehold interests, as the case may be, in each of the Properties, in an amount at least equal to the greater of (i) no Contributor Subsidiarythe mortgage indebtedness of each such Property or (ii) the purchase price of each such Property, JV Entityand all such policies of insurance are in full force and effect; and (H) except as otherwise described in the Registration Statement, the General Disclosure Package or the Prospectus, neither the Operating Partnership nor any other party of its subsidiaries nor, to the knowledge of the Operating Partnership, any tenant of any of the Properties, is in default under (x) any tenant lease (as lessor or lessee, as the case may be) relating to any agreement affecting of the Properties, (y) any Property to which of the Contributor, a Contributor Subsidiary mortgages or JV Entity is a party other security documents or other agreements encumbering or otherwise recorded against the Properties or (other than a Lease (as such term is hereinafter definedz) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred sublease or has been threatened in writingoperating sublease relating to any of the Properties, which whether with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, would constitute a default under any of such agreement, documents or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entityagreements, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of (x), (y) and (z) immediately above any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations default that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 5 contracts
Samples: Underwriting Agreement (Brixmor Operating Partnership LP), Underwriting Agreement (Brixmor Operating Partnership LP), Underwriting Agreement (Brixmor Property Group Inc.)
Properties. (a) The Properties are owned directlyBorrower and each Subsidiary Guarantor has good title to, in fee simpleor valid leasehold interests in, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate all real and personal property material to its business (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of including all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior its property subject to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any PropertyMortgages), except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters defects that would not, individually or in the aggregate, aggregate could not reasonably be expected to have a Contributor Material Adverse Effect.
(b) The Borrower and each Subsidiary Guarantor owns, (i) no Contributor Subsidiaryor is licensed to use, JV Entityall trademarks, nor tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and the Subsidiary Guarantors does not infringe upon the rights of any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV EntityPerson, except for Permitted Liensinfringements that, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, could not reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(c) Schedule 3.16 sets forth a brief description of each Owned Real Property that is owned by the Borrower or any Subsidiary Guarantor as of the Closing Date.
(d) Except for matters that would not, individually or in As of the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s KnowledgeClosing Date, neither the ContributorBorrower nor any Subsidiary Guarantor has received notice of, or has knowledge of, any Contributor Subsidiary pending or contemplated condemnation proceeding or Casualty Event affecting any property subject to a Mortgage or any sale or disposition thereof in lieu of condemnation. No property subject to a Mortgage nor any JV Entity, nor any other party interest therein is subject to any Leaseright of first refusal, has given option or received any notice of default with respect other contractual right to any term purchase such property or condition of any such Leaseinterest therein, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for than Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters No Mortgage encumbers improved Owned Real Property that would not, individually or is located in an area that has been identified by the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each Secretary of Housing and Urban Development as an area having special flood hazards within the meaning of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation National Flood Insurance Act of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, 1968 unless flood insurance available under such Act has been obtained in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equitySection 5.03(b).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 5 contracts
Samples: Abl Credit Agreement (Kindred Healthcare, Inc), Second Amendment and Restatement Agreement (Kindred Healthcare, Inc), Credit Agreement (Kindred Healthcare, Inc)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 Each of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain PropertiesHoldings, the Borrower and each Restricted Subsidiary has good title to, or valid leasehold estate) interests in, all its property necessary for the conduct of its business (including the Mortgaged Properties), except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or as proposed to be conducted or to utilize such Property, in each case properties for their intended purposes. All such property is free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted other than Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Propertyexpressly permitted by Section 6.02.
(b) Except Each of Holdings, the Borrower and each Restricted Subsidiary owns, or has secured the rights to use, all trademarks, trade names, copyrights, patents and other intellectual property material to its business as currently conducted or as currently proposed to be conducted, and the use thereof by Holdings, the Borrower and each Restricted Subsidiary does not infringe upon the rights of any other Person, except, in each case, for matters that would notany such failures to own or have rights to use, or any such infringements that, individually or in the aggregate, could not reasonably be expected to have result in a Contributor Material Adverse Effect. No claim or litigation regarding any trademarks, (i) no Contributor trade names, copyrights, patents or other intellectual property owned or used by Holdings, the Borrower or any Restricted Subsidiary is pending or, to the knowledge of Holdings, the Borrower or any Restricted Subsidiary, JV Entitythreatened against Holdings, nor the Borrower or any other party to any agreement affecting any Property to which the Contributor, a Contributor Restricted Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would notthat, individually or in the aggregate, could reasonably be expected to have result in a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(dc) Except for matters that would notAs of the Effective Date, individually none of Holdings, the Borrower or in the aggregateany Restricted Subsidiary has received notice of, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributoror has knowledge of, any Contributor Subsidiary pending or contemplated condemnation proceeding affecting any Mortgaged Property or any sale or disposition thereof in lieu of condemnation. Neither any Mortgaged Property nor any JV Entity, nor any other party interest therein is subject to any Leaseright of first refusal, has given option or received any notice of default with respect other contractual right to any term purchase such Mortgaged Property or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectinterest therein.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 5 contracts
Samples: Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.)
Properties. Except as otherwise set forth in the Registration Statement, the Prospectus or the Time of Sale Prospectus or such as in the aggregate does not now cause or will in the future cause a Material Adverse Change, the Company has title to its properties as follows:
(a) The Properties are owned directlywith respect to its xxxxx (including leasehold interests and appurtenant personal property) and its non-producing oil and gas properties (including undeveloped locations on leases held by production and those leases not held by production), in fee simple, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter such title is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case good and free and clear of all Liens except for Permitted Liens liens, security interests, pledges, charges, encumbrances, mortgages and Liensrestrictions, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any its non-producing properties in exploration prospects, such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened title was investigated in writing, which accordance with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant customary industry procedures prior to the leases Company’s acquisition thereof; (c) with respect to the sale its real property other than oil and gas interests, such title is good and marketable free and clear of any Property.
(c) As presently conductedall liens, none of the operation of the buildingssecurity interests, fixtures pledges, charges, encumbrances, mortgages and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
restrictions; and (d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term its personal property other than that appurtenant to its oil and gas interests, such title is free and clear of all liens, security interests, pledges, charges, encumbrances, mortgages and restrictions. No real property owned, leased, licensed, or condition of any such Leaseused by the Company lies in an area which is, (ii) or to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset knowledge of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and Company will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its termsbe, subject to applicable bankruptcyrestrictions which would prohibit, insolvencyand no statements of facts relating to the actions or inaction of another person or entity or his or its ownership, reorganizationleasing, moratorium and similar Laws affecting creditors’ rights generally and subjectlicensing, or use of any real or personal property exists or will exist which would prevent, the continued effective ownership, leasing, licensing, exploration, development or production or use of such real property in the business of the Company as to enforceabilitypresently conducted or as the Registration Statement, to general principles the Prospectus or the Time of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s KnowledgeSale Prospectus indicates it contemplates conducting, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or may be properly described in the aggregateRegistration Statement, reasonably be expected to have the Prospectus or the Time of Sale Prospectus or such as in the aggregate do not now cause and will not in the future cause a Contributor Material Adverse EffectChange.
Appears in 5 contracts
Samples: Underwriting Agreement (Gulfport Energy Corp), Underwriting Agreement (Gulfport Energy Corp), Underwriting Agreement (Gulfport Energy Corp)
Properties. (a) The Properties are owned directlySection 4.09(a) of the Newhall Disclosure Schedule sets forth a list or description of all material real property that the Newhall Entities own or lease (collectively, the “Newhall Properties”) or have a right or obligation to acquire, sell or lease (other than under this Agreement), whether or not subject to the satisfaction of conditions, indicating, in fee simpleeach case, by the Persons set forth on Section 4.10 name of each of the Contributor Disclosure Letter Newhall Entities that owns or their direct leases or indirect wholly owned subsidiarieshas the right or obligation to acquire, sell or lease such real property. Each Contributor Subsidiary or JV Entity of the Newhall Entities listed as owning a Property on Section 4.10 any of the Contributor Disclosure Letter is insured under Newhall Properties on such Schedule has good and marketable title in fee simple to such Newhall Properties (except to the extent noted as a policy of title insurance as the owner leasehold or other property interest in Section 4.09(a) of the fee simple estate (orNewhall Disclosure Schedule), in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Encumbrances other than (i) Permitted Liens and Liens, if any, given Encumbrances or (ii) other Encumbrances that would not reasonably be expected to secure mortgage indebtedness encumbering such Propertyhave a Newhall Material Adverse Effect. Prior to the effective time Each of the transactions contemplated Newhall Entities listed as lessee of any of the Newhall Properties on such Schedule has a valid leasehold interest in this Contribution Agreementsuch Newhall Properties, no Contributor Subsidiary free and clear of Encumbrances other than (A) Permitted Encumbrances or JV Entity shall take or omit (B) other Encumbrances that would not reasonably be expected to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Propertyhave a Newhall Material Adverse Effect.
(b) Except for matters that would not, individually or in the aggregate, not reasonably be expected to have a Contributor Newhall Material Adverse Effect, (i) the Newhall Entities have sole possession of the Newhall Properties, there are no Contributor Subsidiaryparties in possession of any portion of the Newhall Properties as lessees, JV Entitytenants at sufferance, nor any other party trespassers, licensees or otherwise, and none of the Newhall Entities has granted or agreed to grant to any agreement affecting any Property to which Person, and none of the Contributor, a Contributor Subsidiary or JV Entity Newhall Entities is a party to, any option, contract, right of first refusal, right of first offer, affordable housing agreement, profit participation (payable to a Person other than a Lease (as such term is hereinafter defined) for space within such Propertyone of the Newhall Entities), has given anti-speculation option, joint venture or received similar agreement or any notice of default other agreement or understanding, in each case, with respect to any term a purchase or condition sale of any such agreement, including, without limitation, any ground lease, the Newhall Properties (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material real property that the Newhall Entities have a right or obligation of to acquire) or any party thereto portion thereof or the creation of a Lien upon any asset of any Contributor Subsidiary interest therein or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect which any sales proceeds relating to the sale of any PropertyNewhall Properties are required to be paid to any other Person.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except Except for such violations matters that would not, individually or in the aggregate, not reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Newhall Material Adverse Effect, (i) there is no existing, or to the Contributor’s Knowledgeknowledge of the Newhall Companies, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with proceeding that would involve the condemnation, eminent domain rezoning or without other modification of the passage zoning classification of time or any of the giving of noticeNewhall Properties, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications portion thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 4 contracts
Samples: Contribution and Sale Agreement (Five Point Holdings, LLC), Contribution and Sale Agreement (Lennar Corp /New/), Contribution and Sale Agreement (Lennar Corp /New/)
Properties. (aA) The Properties are owned directly, in Company or its subsidiaries have good and marketable title (fee simple, by the Persons set forth on Section 4.10 or leasehold) to all of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, real properties described in the case of certain PropertiesRegistration Statement, the leasehold estateDisclosure Package and the Prospectus as owned or leased by them and the improvements located thereon (individually, a “Property” and collectively, the “Properties”) of such Propertyand any other real property owned by them, in each case case, free and clear of all Liens mortgages, pledges, liens, claims, security interests, restrictions or encumbrances of any kind, except for such mortgages, pledges, liens, claims, security interests, restrictions or encumbrances as (1) are described in the Registration Statement, Disclosure Package and the Prospectus, (2) are Permitted Liens Encumbrances or (3) would not, individually or in the aggregate, have a Material Adverse Effect; (B) all of the ground leases and Lienssubleases relating to the Properties, if any, given to secure mortgage indebtedness encumbering such Property. Prior material to the effective time business of the transactions contemplated Company and its subsidiaries considered as one enterprise, are in this Contribution Agreementfull force and effect, no Contributor Subsidiary with such exceptions as are not material and do not materially interfere with the use made or JV Entity shall take proposed to be made of such Property by the Company or omit any of its subsidiaries, and neither the Company nor any of its subsidiaries has any notice of any material claim of any sort that has been asserted by anyone adverse to take the rights of the Company or any action of its subsidiaries under any of the ground leases or subleases mentioned above, or affecting or questioning the rights of the Company or any of its subsidiaries to cause the continued possession of the leased or subleased premises under any Lien such ground lease or sublease; (C) all liens, charges, encumbrances, claims or restrictions on or affecting any of the Properties and the assets of the Company or any of its subsidiaries that are required to attach be disclosed in the Registration Statement, the Disclosure Package or the Prospectus are disclosed therein; (D) each of the Properties complies with all applicable codes, laws and regulations (including, without limitation, building and zoning codes, laws and regulations and laws relating to any Propertyaccess to the Properties), except for Permitted Liens and Liens, if any, given such failures to secure mortgage indebtedness encumbering such Property.
(b) Except for matters comply that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect; (E) the Company has no knowledge of any pending or threatened condemnation proceedings, zoning change or other proceeding or action that will in any material manner affect the size of, use of, improvements on, construction on or access to the Properties, except as would not, individually or in the aggregate, have a Material Adverse Effect; (F) the mortgages and deeds of trust that encumber the Properties are not convertible into equity securities of the entity owning such Property and said mortgages and deeds of trust are not cross-defaulted or cross-collateralized with any property other than other Properties; (G) the Company, directly or indirectly, has obtained title insurance on the fee or leasehold interests, as the case may be, in each of the Properties, in an amount at least equal to the greater of (i) no Contributor Subsidiarythe mortgage indebtedness of each such Property or (ii) the purchase price of each such Property, JV Entityand all such policies of insurance are in full force and effect; and (H) except as otherwise described in the Registration Statement, the Disclosure Package or the Prospectus, neither the Company nor any other party of its subsidiaries nor, to the knowledge of the Company, any tenant of any of the Properties, is in default under (x) any tenant lease (as lessor or lessee, as the case may be) relating to any agreement affecting of the Properties, (y) any Property to which of the Contributor, a Contributor Subsidiary mortgages or JV Entity is a party other security documents or other agreements encumbering or otherwise recorded against the Properties or (other than a Lease (as such term is hereinafter definedz) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred sublease or has been threatened in writingoperating sublease relating to any of the Properties, which whether with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, would constitute a default under any of such agreement, documents or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entityagreements, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of (x), (y) and (z) immediately above any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations default that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 4 contracts
Samples: Underwriting Agreement (Brixmor Operating Partnership LP), Underwriting Agreement (Brixmor Operating Partnership LP), Underwriting Agreement (Brixmor Operating Partnership LP)
Properties. (a) The Properties are owned directlyBorrower and each Subsidiary Guarantor has good title to, in fee simpleor valid leasehold interests in, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate all real and personal property material to its business (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of including all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior its property subject to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any PropertyMortgages), except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters defects that would not, individually or in the aggregate, aggregate could not reasonably be expected to have a Contributor Material Adverse Effect.
(b) The Borrower and each Subsidiary Guarantor owns, (i) no Contributor Subsidiaryor is licensed to use, JV Entityall trademarks, nor tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and the Subsidiary Guarantors does not infringe upon the rights of any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV EntityPerson, except for Permitted Liensinfringements that, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, could not reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(c) Schedule 3.16 sets forth a brief description of each Owned Real Property that is owned by the Borrower or any Subsidiary Guarantor as of the Third Amendment and Restatement Effective Date.
(d) Except for matters that would not, individually or in As of the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s KnowledgeThird Amendment and Restatement Effective Date, neither the ContributorBorrower nor any Subsidiary Guarantor has received notice of, or has knowledge of, any Contributor Subsidiary pending or contemplated condemnation proceeding or Casualty Event affecting any property subject to a Mortgage or any sale or disposition thereof in lieu of condemnation. No property subject to a Mortgage nor any JV Entity, nor any other party interest therein is subject to any Leaseright of first refusal, has given option or received any notice of default with respect other contractual right to any term purchase such property or condition of any such Leaseinterest therein, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for than Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters No Mortgage encumbers improved Owned Real Property that would not, individually or is located in an area that has been identified by the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each Secretary of Housing and Urban Development as an area having special flood hazards within the meaning of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation National Flood Insurance Act of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, 1968 unless flood insurance available under such Act has been obtained in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equitySection 5.03(b).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 4 contracts
Samples: Term Loan Credit Agreement (Kindred Healthcare, Inc), Fifth Amendment and Restatement Agreement (Kindred Healthcare, Inc), Fourth Amendment and Restatement Agreement (Kindred Healthcare, Inc)
Properties. (a) The Properties are owned directlyBorrower and each Subsidiary Guarantor has good title to, in fee simpleor valid leasehold interests in, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate all real and personal property material to its business (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of including all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior its property subject to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any PropertyMortgages), except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters defects that would not, individually or in the aggregate, aggregate could not reasonably be expected to have a Contributor Material Adverse Effect.
(b) The Borrower and each Subsidiary Guarantor owns, (i) no Contributor Subsidiaryor is licensed to use, JV Entityall trademarks, nor tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and the Subsidiary Guarantors does not infringe upon the rights of any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV EntityPerson, except for Permitted Liensinfringements that, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, could not reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(c) Schedule 3.16 sets forth a brief description of each Owned Real Property that is owned by the Borrower or any Subsidiary Guarantor as of the Second Amendment and Restatement Date.
(d) Except for matters that would not, individually or in As of the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s KnowledgeSecond Amendment and Restatement Date, neither the ContributorBorrower nor any Subsidiary Guarantor has received notice of, or has knowledge of, any Contributor Subsidiary pending or contemplated condemnation proceeding or Casualty Event affecting any property subject to a Mortgage or any sale or disposition thereof in lieu of condemnation. No property subject to a Mortgage nor any JV Entity, nor any other party interest therein is subject to any Leaseright of first refusal, has given option or received any notice of default with respect other contractual right to any term purchase such property or condition of any such Leaseinterest therein, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for than Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters No Mortgage encumbers improved Owned Real Property that would not, individually or is located in an area that has been identified by the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each Secretary of Housing and Urban Development as an area having special flood hazards within the meaning of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation National Flood Insurance Act of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, 1968 unless flood insurance available under such Act has been obtained in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equitySection 5.03(b).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 4 contracts
Samples: Fourth Amendment and Restatement Agreement (Kindred Healthcare, Inc), Abl Credit Agreement (Kindred Healthcare, Inc), Abl Credit Agreement (Kindred Healthcare, Inc)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 Each of the Contributor Disclosure Letter Borrower and its Subsidiaries has good title to, or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (orvalid leasehold interests in, in the case of certain Properties, the leasehold estate) of such Property, in each case free all its real and clear of all Liens except for Permitted Liens and Liens, if any, given personal property material to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Propertyits business, except for Permitted Liens and Liens, if any, given minor defects in title that do not materially interfere with its ability to secure mortgage indebtedness encumbering conduct its business as currently conducted or to utilize such Propertyproperties for their intended purposes.
(b) Except Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for matters that would notany such infringements that, individually or in the aggregate, could not reasonably be expected to have result in a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation Effective Date, each Subsidiary of the buildingsBorrower, fixtures including its ownership, is described on Schedule 3.05 hereto, and other improvements comprising a part each Subsidiary that is an Unrestricted Subsidiary as of the Properties Effective Date is designated as such on Schedule 3.05 hereto. Each Subsidiary of the Borrower has and will have all requisite power to own or lease the properties material to its business and to carry on its business as now being conducted and as proposed to be conducted. All outstanding shares of Equity Interests of each class of each Subsidiary of the Borrower have been and will be validly issued and are and will be fully paid and nonassessable and, except as otherwise indicated in violation Schedule 3.05 hereto or disclosed in writing to the Administrative Agent and the Lenders from time to time, are and will be owned, beneficially and of record, by the Borrower or another Subsidiary of the Borrower, free and clear of any applicable building codeLiens other than Liens permitted under this Agreement.
(d) As of the Effective Date, zoning ordinance there are no restrictions on the Borrower or any of its Subsidiaries which prohibit or otherwise restrict the transfer of cash or other assets from any Subsidiary of the Borrower to the Borrower, other than (i) prohibitions or restrictions existing under or by reason of this Agreement or the other Loan Documents, (ii) prohibitions or restrictions existing under or by reason of applicable requirements of law and (iii) other prohibitions or regulationrestrictions which, except for such violations that would not, either individually or in the aggregate, have not had, or could not reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would nothave, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 4 contracts
Samples: Credit Agreement (Marcus Corp), Credit Agreement (Marcus Corp), Credit Agreement (Marcus Corp)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 Each of the Contributor Disclosure Letter Borrower and the Restricted Subsidiaries has good title to, valid leasehold interests in, or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (orrights to use, in the case of certain Properties, the leasehold estate) of such Property, in each case free all its real and clear of all Liens except for Permitted Liens and Liens, if any, given personal property material to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Propertyits business, except for Permitted Liens permitted under Section 6.02 and Liens, if any, given except where the failure to secure mortgage indebtedness encumbering have such Propertyinterest would not reasonably be expected to have a Material Adverse Effect.
(b) Set forth on Schedule 3.05 hereto is a complete and accurate list of all Material Real Property owned by any Loan Party as of the Closing Date, showing as of the Closing Date the street address (to the extent available), county or other relevant jurisdiction, state and record owner
(c) Except for matters that would as could not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, Effect (i) no Contributor Subsidiarythe Borrower and the Restricted Subsidiaries own, JV Entityor are licensed to use, nor any other party to any agreement affecting any all Intellectual Property to which that is necessary for the Contributoroperation of their respective businesses as currently conducted, a Contributor Subsidiary or JV Entity is a party free and clear of all Liens (other than a Lease (as such term is hereinafter defined) for space within such PropertyLiens permitted under Section 6.02), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledgeknowledge of the Borrower, no event has occurred or has been threatened in writingall registered and issued Intellectual Property rights owned by the Borrower and the Restricted Subsidiaries are valid and enforceable, which with or without (iii) the passage conduct of, and the use of time or Intellectual Property in, the giving respective businesses of noticethe Borrower and the Restricted Subsidiaries does not infringe, misappropriate, dilute, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause otherwise violate the acceleration rights of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liensother Person, and (iiiiv) each there are no claims, actions, suits or proceedings pending against or, to the knowledge of the leases (and all amendments thereto or modifications thereof) to which Borrower, threatened in writing against the Contributor, any Contributor Subsidiary Borrower or any JV Entity is a party Restricted Subsidiary (A) alleging any infringement, misappropriation, dilution or violation by which any Contributor, Contributor Subsidiary or JV Entity the Borrower or any Restricted Subsidiary of any Intellectual Property is bound right of any other Person, or subject (collectivelyB) challenging the ownership, use, validity or enforceability of any Intellectual Property owned by or licensed to the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary Borrower or any JV Entity is a party or by which the Contributor, any Contributor Restricted Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 4 contracts
Samples: First Lien Credit Agreement (GoodRx Holdings, Inc.), First Lien Credit Agreement (GoodRx Holdings, Inc.), First Lien Credit Agreement (GoodRx Holdings, Inc.)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons Except as set forth on Section 4.10 3.8 of the Contributor Company Disclosure Letter Schedule, the Company or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 one of its subsidiaries (i) has good and marketable title to all the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate properties and assets (or, A) reflected in the case of certain Properties, the leasehold estate) of such PropertyCompany Balance Sheet, in each case case, as being owned by the Company or one of its subsidiaries (other than any such properties or assets sold or disposed of since such date in the ordinary course of business consistent with past practice) or (B) acquired after the date of the Company Balance Sheet which are material to the Company's business on a consolidated basis, free and clear of all Liens Encumbrances, except for Permitted Liens statutory Encumbrances securing payments not yet due and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to Encumbrances as do not materially affect the effective time use of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary properties or JV Entity shall take assets subject thereto or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens affected thereby or otherwise materially impair business operations at such properties and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred is the lessee of all leasehold estates (x) reflected in the Company Balance Sheet or has been threatened (y) acquired after the date of the Company Balance Sheet, in writingeach case, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute are material to its business on a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, consolidated basis (except for Permitted Liensleases that have expired by their terms since the date thereof) and is in possession of the properties purported to be leased thereunder, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of each such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, lease is in full force and effect, effect and constitutes the a legal, valid and binding obligation of, and is legally enforceable against, the respective parties thereto, and there is no material default thereunder by the lessee or, to the Company's knowledge, as of the Contributor or date hereof, the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)lessor.
(fb) To The Company has not received notice and does not otherwise have knowledge of any pending, threatened or contemplated condemnation proceeding affecting any premises owned or leased by the Contributor’s Knowledge, Company or any of its subsidiaries or any part thereof or of any sale or other disposition of any such owned or leased premises or any part thereof in lieu of condemnation. The Company has filed in the Company SEC Reports copies of material agreements representing all of its material leasehold estates. The Company does not own any real property. The consummation by the Company of the transactions contemplated by this Agreement without the consent of any lessor under any lease by the Company will not cause a default under any lease except as set forth in Section 3.8(a) of the Company Disclosure Schedule.
(c) Except as set forth on Section 3.8 of the Company Disclosure Schedule or otherwise provided in writing to Parent, there are no conditions on any property currently or previously disclosed to owned, leased, occupied or used by the Company, no tenant under or any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedingsits subsidiaries, except for matters that would not, individually or in the aggregate, could reasonably be expected to have a Contributor Material Adverse Effectresult in any material claim or liability, whether accrued, contingent, arising under or related to environmental law.
Appears in 3 contracts
Samples: Merger Agreement (Cytyc Corp), Agreement and Plan of Merger (Digene Corp), Agreement and Plan of Merger (Digene Corp)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 As of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning Initial Borrowing Date, Schedule 9.05(a) sets forth a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free correct and clear complete list of all Liens except for Permitted Liens Owned Real Property and Liens, if any, given Leased Real Property of each Credit Party (other than Target and its Subsidiaries) and Schedule 9.05(b) sets forth a correct and complete list of all Owned Real Property and Leased Real Property of Target and its Subsidiaries which are expected to secure mortgage indebtedness encumbering such Propertybecome Credit Parties on or after the Merger Closing Date. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, as could not reasonably be expected to have a Contributor Material Adverse Effect, as of the Initial Borrowing Date (a) (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as each of such term is hereinafter definedLeases listed on Schedule 9.05(a) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, and (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation each of such Property (exclusive of space leases) are leases and subleases listed on Schedule 9.05(b), in each case, is valid and binding enforceable in accordance with its terms and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes (b) to the legal, valid and binding obligation knowledge of the Contributor Borrower and the other Credit Parties, no default by any party to any such Lease, lease or sublease exists. Except as set forth on Schedule 9.05(a) or (b), each of the applicable Contributor Subsidiary Credit Parties has good title to all of its Owned Real Property and personal property and valid leasehold interests in (or JV Entityotherwise has the right to use), and all of its Leased Real Property, in each case as is necessary to the Contributor’s Knowledgeconduct of its business in the ordinary course, each free of all Liens other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and than Permitted Liens. Notwithstanding anything to the Contributor’s Knowledgecontrary contained above or elsewhere in this Agreement, each other party theretofrom time to time, in accordance with its termsif it comes to the knowledge of the Borrower that any of the Owned Real Property or Leased Real Property listed on Schedule 9.05(b) was owned by an Excluded Subsidiary as of the Initial Borrowing Date, subject the Borrower shall notify the Administrative Agent of same and such Owned Real Property and/or Leased Real Property shall automatically be deemed removed from Schedule 9.05(b) effective as of the date hereof and (iii) if it comes to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles the knowledge of equity (regardless the Borrower within five Business Days of whether enforcement the Initial Borrowing Date that any of the Leased Real Property listed on Schedule 9.05(a) is sought in a proceeding at law or in equityleased by CFL then such Leased Real Property shall automatically be deemed removed from Schedule 9.05(a).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 3 contracts
Samples: Credit Agreement (CF Industries Holdings, Inc.), Credit Agreement (CF Industries Holdings, Inc.), Credit Agreement (CF Industries Holdings, Inc.)
Properties. (a) The Properties are owned directlyBorrower and its Subsidiaries have good title to, in fee simpleor valid leasehold interests in, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (orall its tangible personal property material to its business, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for [*****] Raptor Pharmaceutical Corp. has requested confidential treatment of certain portions of this agreement which have been omitted and filed separately with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934. (other than Permitted Liens Liens) and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated minor irregularities or deficiencies in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would nottitle that, individually or in the aggregate, reasonably be expected do not materially interfere with its ability to have conduct its business as currently conducted or to utilize such property for its intended purpose. The tangible personal property of the Borrower and its Subsidiaries, taken as a Contributor Material Adverse Effectwhole, (i) no Contributor Subsidiaryis in good operating order, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party condition and repair (other than a Lease (as such term is hereinafter definedordinary wear and tear and casualty and condemnation excepted) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, and (ii) no event has occurred or has been threatened in writing, constitutes all the property which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property is required for the continued usebusiness and operations of the Borrower and its Subsidiaries, occupancyas presently conducted.
(b) Schedule 7.21 of the Disclosure Letter contains a true and complete list of each interest in real property (i) owned by the Borrower and its Subsidiaries (describing the type of interest therein held by the Borrower and its Subsidiaries); and (ii) leased, managementsubleased or otherwise occupied or utilized by the Borrower and its Subsidiaries, leasing as lessee, sublessee, franchisee or licensee (describing the type of interest therein held by the Borrower and operation its Subsidiaries) and, in each of such Property the cases described in clauses (exclusive i) and (ii) of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary this clause (b), whether any lease requires the consent of the landlord or JV Entity has granted an option tenant thereunder, or right of first refusal or offer pursuant other party thereto, to the leases with respect to transactions contemplated by the sale of any PropertyLoan Documents.
(c) As presently conducted, none of the operation of the buildings, fixtures The Borrower and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to its Subsidiaries have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has not received any written notice from a Governmental Authority of, nor, to the Knowledge of each Borrower Party, has there occurred any pending involuntary loss of title, any involuntary loss of, damage to or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individuallydestruction of, or in the aggregateany condemnation or other taking (including by any Governmental Authority) of, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectportion of its property.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 3 contracts
Samples: Loan Agreement (Raptor Pharmaceutical Corp), Loan Agreement (Raptor Pharmaceutical Corp), Loan Agreement (Raptor Pharmaceutical Corp)
Properties. (a) The Properties are Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned directly, in fee simple, by the Persons set forth Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on Section 4.10 a consolidated basis (except properties sold or otherwise disposed of since the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, date thereof in the case ordinary course of certain Propertiesbusiness), the leasehold estate) of such Property, in each case free and clear of all Liens except for other than the Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that as would not, individually or in the aggregate, have had or reasonably be expected to have a Contributor Company Material Adverse Effect, : (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no Contributor Subsidiarybreach or default under any Lease by the Company or any of its Subsidiaries or, JV Entityto the knowledge of the Company, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party thereto; (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (iiiii) no event has occurred or has been threatened in writing, which that with or without the passage lapse of time or the giving of notice, notice or both, would, individually or together with all such other events, both would constitute a breach or default under any such agreementLease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or wouldportion thereof, individually and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or together with other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all such other events, reasonably be expected to cause the acceleration or any portion of any material obligation real property subject to a Lease, except, in the case of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, (ii) and (iii) all agreements affecting any Property required for the continued use), occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that as would not, individually or in the aggregate, not reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Except for matters that would notOther than the real property commonly known as, individually 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Contributor’s KnowledgeOwned Real Property, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition free and clear of any such LeaseLiens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the Contributor’s Knowledgeright to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or has been threatened in writing, which with or without the passage lapse of time or the giving of notice, or both, would, individually or together with all would constitute such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liensdefault, and (iiiv) each there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the leases (and all amendments thereto or modifications thereof) to which the ContributorCompany, any Contributor Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary or has received from any JV Entity is a party or by which Governmental Authority written notice of any Contributoruncured violation of any applicable Laws pertaining to any buildings, Contributor Subsidiary or JV Entity or any structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property is bound or subject and the Owned Real Property (collectively, the “LeasesImprovements”) is ), including those pertaining to health and will safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be valid and binding and in full force and effect.
required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (e) Except for matters without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would not, individually or result in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the Leases to which the Contributor, business of any Contributor Subsidiary Company or any JV Entity is a party or by which the Contributor, any Contributor Company Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 3 contracts
Samples: Stock Purchase and Sale Agreement (Janel Corp), Stock Purchase and Sale Agreement (Janel Corp), Stock Purchase and Sale Agreement (Rubicon Technology, Inc.)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons Except as set forth on Section 4.10 in Schedule 1.08(a), or for matters that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each applicable Xxxxxxx Entity or one of its Subsidiaries is the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a valid and existing policy of title insurance as the owner of of, and the applicable Xxxxxxx Entity or its Subsidiary is the owner of, good, marketable and insurable fee simple estate title (or, in the case of certain Properties, the leasehold tenancy-in-common estate) of to such Property, Xxxxxxx Entity’s Property in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i1) no Contributor Subsidiary, JV Xxxxxxx Entity, nor any of their respective Subsidiaries, nor, to the Principals’ Knowledge, any other party to any material agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given is in breach or received any notice of default with respect to any term or condition of any such agreement, including(2) to the Principal’s Knowledge, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary Xxxxxxx Entity or JV Entityany of their respective Subsidiaries, except for Permitted Liens, and (iii3) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leasesLeases) are valid and binding and in full force and effect. No Contributor Subsidiary , subject to applicable bankruptcy, insolvency, moratorium or JV Entity has granted an option or right other similar Laws relating to creditors’ rights and general principles of first refusal or offer pursuant to the leases with respect to the sale of any Propertyequity.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse EffectEffect or that are otherwise disclosed on Schedule 1.08(c), (i1) to the Contributor’s Principals’ Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV no Xxxxxxx Entity, nor any of its Subsidiaries, nor to the Principals’ Knowledge any other party to any Lease, has given is in breach or received any notice of default with respect to any term or condition of any such Lease, (ii2) to the Contributor’s Principals’ Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually permit termination, modification or together with all acceleration under such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, Lease and (iii3) to the Principals’ Knowledge, each of the leases Leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Xxxxxxx Entity or its Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary Xxxxxxx Entity or JV Entity its Subsidiaries or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and or other similar Laws affecting relating to creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 3 contracts
Samples: Representation, Warranty and Indemnity Agreement (Rexford Industrial Realty, Inc.), Representation, Warranty and Indemnity Agreement (Rexford Industrial Realty, Inc.), Representation, Warranty and Indemnity Agreement (Rexford Industrial Realty, Inc.)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed Except as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free does not have and clear of all Liens except for Permitted Liens and Liens, if any, given would not reasonably be expected to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would nothave, individually or in the aggregate, reasonably be expected to have a Contributor Contango Material Adverse Effect, and with respect to clauses (ia) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party and (other than a Lease (as such term is hereinafter defined) for space within such Propertyb), has given or received any notice of default except with respect to any term or condition of any such agreementContango’s Oil and Gas Properties: (a) Contango and its Subsidiaries have good, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant defensible title to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary real property owned by Contango or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject of its Subsidiaries (collectively, the “LeasesContango Owned Real Property”) is and will be valid and binding and leasehold estates in full force and effect.
all real property leased, subleased, licensed or otherwise occupied (ewhether as tenant, subtenant or pursuant to other occupancy arrangements) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary by Contango or any JV Entity is a party or by of its Subsidiaries (collectively, including the improvements thereon, the “Contango Leased Real Property”) free and clear of all Liens, except Permitted Liens, (b) each agreement under which the Contributor, any Contributor Subsidiary, JV Entity Contango or any of its Subsidiaries is the landlord, sublandlord, tenant, subtenant, or occupant with respect to the Contango Leased Real Property is bound or subject(each, a “Contango Real Property Lease”) is in full force and effect, effect and constitutes the legal, is valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, parties thereto in accordance with its terms, subject as to applicable enforceability to bankruptcy, insolvency, reorganization, moratorium and similar other Laws of general applicability relating to or affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless equity, and neither Contango nor any of whether enforcement is sought in a proceeding at law its Subsidiaries, or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Companyknowledge of Contango, no tenant any other party thereto, has received written notice of any default under any such Lease is presently Contango Real Property Lease, and (c) there does not exist any pending or, to the subject knowledge of Contango, threatened condemnation or eminent domain Proceedings that affect any voluntary of Contango’s Oil and Gas Properties, Contango Owned Real Property or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse EffectContango Leased Real Property.
Appears in 3 contracts
Samples: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Mid-Con Energy Partners, LP)
Properties. (aA) The Properties Company, the Operating Partnership, the Subsidiaries, and each Residential Development Corporation, as the case may be, has good and marketable title to all the properties and assets reflected as owned by such entities in the financial statements included in the Registration Statement, and good and marketable title to the improvements, if any, thereon and all other assets that are owned directlyrequired for the effective operation of such real property in the manner in which they currently are operated; subject to no lien, mortgage, pledge, charge or encumbrance of any kind except (i) those, if any, reflected in fee simplesuch financial statements, or (ii) those which would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, assets, business affairs or business prospects of or with respect to the Company, the Operating Partnership, the Subsidiaries and the Residential Development Corporations considered as one enterprise, (B) the leases of any real property and buildings held under lease by the Persons set forth on Section 4.10 Company, the Operating Partnership, any Subsidiary or any Residential Development Corporation are in full force and effect, and such entity is not in default in respect of any of the Contributor Disclosure Letter terms or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 provisions of such leases and such entity has not received notice of the Contributor Disclosure Letter is insured assertion of any claim by anyone adverse to such entity's rights as lessee under a policy of title insurance as such leases, or affecting or questioning such entity's right to the owner continued possession or use of the fee simple estate (or, in the case real property and buildings held under such leases or of certain Properties, the leasehold estate) of a default under such Propertyleases, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering with such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that exceptions as would not, individually or in the aggregate, reasonably be expected to not have a Contributor Material Adverse Effectmaterial adverse impact on the condition, (i) no Contributor Subsidiaryfinancial or otherwise, JV Entityor on the earnings, nor any other party to any agreement affecting any Property to which the Contributorassets, a Contributor Subsidiary business affairs or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given business prospects of or received any notice of default with respect to the Company, the Operating Partnership, the Subsidiaries and the Residential Development Corporations considered as one enterprise; (C) none of the Company, the Operating Partnership, any term of the Subsidiaries, any of the Residential Development Corporations or condition any tenant of any such agreementof the Properties is in default under any of the leases pursuant to which any of the Company, includingthe Operating Partnership, without limitationthe Subsidiaries of any of the Residential Development Corporations, as lessor, leases its Property (and neither the Company nor the Operating Partnership knows of any ground leaseevent which, (ii) no event has occurred or has been threatened in writing, which with or without but for the passage of time or the giving of notice, or both, would, individually or together with all such other events, would constitute a default under any of such agreementleases) other than such defaults that would not have a material adverse effect on the condition, financial or otherwise, or wouldon the earnings, individually assets, business affairs or together business prospects of or with all such other eventsrespect to the Operating Partnership, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and any Residential Development Corporation or any Property; (iiiE) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity no person has granted an option or right of first refusal to purchase all or offer pursuant to part of any Property or any interest therein, other than such options or rights of first refusal which would not have a material adverse effect on the leases condition, financial or otherwise, or on the earnings, assets, business affairs or business prospects of or with respect to the sale of any Property.
Company, the Operating Partnership, the Subsidiaries and the Residential Development Corporations, considered as one enterprise; (cF) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part each of the Properties is in violation of any complies with all applicable codes, laws and regulations (including, without limitation, building codeand zoning codes, zoning ordinance or other law or regulationlaws and regulations and laws relating to access to the Properties), except for such violations failures to comply that would not, not individually or in the aggregate, reasonably be expected to aggregate have a Contributor Material Adverse Effect. Neither material adverse impact on the Contributor condition, financial or otherwise, or on the earnings, assets, business affairs or business prospects of such Property or the Operating Partnership; (G) there are in effect for the Properties, including, to the knowledge of the Company, any property underlying indebtedness held by the Company, the Operating Partnership, any of the Subsidiaries and any of the Residential Development Corporations, and the other assets of the Company, the Operating Partnership, the Subsidiaries and the Residential Development Corporations, insurance policies covering risks and in amounts that are commercially reasonable for the assets owned by them and that are consistent with the types and amounts of insurance typically maintained by present owners of similar types of properties; and (H) neither the Company nor any Contributor Subsidiary nor any JV Entity the Operating Partnership has received any written notice from a Governmental Authority knowledge of any pending or threatened condemnation proceedings, zoning change, or other proceeding or action that will in any manner affect the size of, use of, improvements on, construction on or access to the Properties, including any property underlying indebtedness held by the Company, the Operating Partnership, any of the Subsidiaries or any Residential Development Corporation, except such proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings actions that would notnot have a material adverse effect on the condition, individuallyfinancial or otherwise, or in on the aggregateearnings, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would notassets, individually business affairs or in business prospects of the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given Operating Partnership or received any notice of default with respect to such Property, including any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or property underlying indebtedness held by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under the Operating Partnership, any such Lease is presently of the subject of Subsidiaries or any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse EffectResidential Development Corporation.
Appears in 2 contracts
Samples: Purchase Agreement (Crescent Real Estate Equities Co), Purchase Agreement (Crescent Real Estate Equities Co)
Properties. (a) The Properties are Schedule 1.09(a) sets forth each Property owned directly, in fee simple, by the Persons each Provident Entity or its Subsidiaries. Except as set forth on Section 4.10 Schedule 1.09(a), each applicable Provident Entity or one of its Subsidiaries set forth on Schedule 1.09(a) is the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of of, and the applicable Provident Entity or its Subsidiary is the owner of, the fee simple estate (or, in the case of certain Properties, the leasehold estate) of to such PropertyProvident Entity’s Property identified on Schedule 1.09(a) as being owned by such Provident Entity or its Subsidiary, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions mergers and contributions contemplated in this Contribution Agreementthe Formation Transaction Documentation, no Contributor Subsidiary or JV Entity none of the Provident Entities nor any of their respective Subsidiaries shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) There are no agreements between a Provident Entity and a third party that contain surviving provisions imposing obligations of confidentiality, indemnification, noncompetition or nonsolicitation on the Provident Entities or require payments by the Provident Entity in excess of $5,000 annually, other than those agreements copies of which have been delivered to the Consolidated Entities, and each of which is identified on Schedule 1.09(b). There are no other understandings, oral or written, between the applicable Provident Entity and any of the other parties to the agreements except as provided therein. Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor SubsidiaryProvident Entity, JV Entitynor any of their respective Subsidiaries, nor any other party to any material agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property, but including any agreement that constitutes a Permitted Lien), has given is in breach or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or or, to Provident’s Knowledge, has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary Provident Entity or JV Entityany of their respective Subsidiaries, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary , subject to applicable bankruptcy, insolvency, moratorium or JV Entity has granted an option or right other similar Laws relating to creditors’ rights and general principles of first refusal or offer pursuant to the leases with respect to the sale of any Propertyequity.
(c) As To Provident’s Knowledge, as presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation“land use” Law, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) The applicable Provident Entity or its Subsidiary holds the lessor’s interest under the leases with tenants of each Property (the “Leases”). There are no Leases at the Properties other than those forms of which have been delivered to the Consolidated Entities. To Provident’s Knowledge, the rent rolls attached as Schedule 1.09(d) accurately describe all existing Leases and there are no other understandings, oral or written between the applicable Provident Entity and any of the tenants with respect to the Properties other than the Leases. Except for matters that would not, individually or as set forth in the aggregate, reasonably be expected to have a Contributor Material Adverse EffectSchedule 1.09(d), (i) no Provident Entity, nor any of its Subsidiaries, nor, to the ContributorProvident’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given is in breach or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or or, to Provident’s Knowledge, has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually permit termination, modification or together with all acceleration under such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted LiensLease, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity Leases is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and or other similar Laws affecting relating to creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Representation, Warranty and Indemnity Agreement (Silver Bay Realty Trust Corp.), Representation, Warranty and Indemnity Agreement (Silver Bay Realty Trust Corp.)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons Except as set forth on Section 4.10 of in Schedule 4.08(a), the Contributor Disclosure Letter RIF V Fund or their direct or indirect wholly owned subsidiaries. Each Contributor its RIF V Fund Subsidiary or JV Entity listed as owning a Property on Section 4.10 of is the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of, and, to the knowledge of the RIF V Fund, the RIF V Fund or its RIF V Fund Subsidiary is the owner of, good, marketable and insurable fee simple estate title (or, in the case of certain Properties, the leasehold a tenancy-in-common estate) of such Propertyto the Property owned by the RIF V Fund or its RIF V Fund Subsidiary, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time Effective Time, neither the RIF V Fund nor any of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity its RIF V Fund Subsidiaries shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Fund Material Adverse Effect, (i1) no Contributor Subsidiaryneither the RIF V Fund nor any of its RIF V Fund Subsidiaries nor, JV Entityto the knowledge of the RIF V Fund, nor any other party to any material agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given is in breach or received any notice of default with respect to any term or condition of any such agreement, including(2) to the knowledge of the RIF V Fund, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary the RIF V Fund or JV Entityits RIF V Fund Subsidiary, except for Permitted Liens, or otherwise reasonably be expected to have a Fund Material Adverse Effect and (iii3) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leasesLeases) are valid and binding and in full force and effect. No Contributor Subsidiary , subject to applicable bankruptcy, insolvency, moratorium or JV Entity has granted an option or right other similar Laws relating to creditors’ rights and general principles of first refusal or offer pursuant to the leases with respect to the sale of any Propertyequity.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Fund Material Adverse EffectEffect or that are otherwise disclosed on Schedule 4.08(c), (i1) neither the RIF V Fund, nor its RIF V Fund Subsidiaries, nor, to the Contributor’s Knowledgeknowledge of the RIF V Fund, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given is in breach or received any notice of default with respect to any term or condition of any such Lease, (ii2) to the Contributor’s Knowledgeknowledge of the RIF V Fund, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any LeaseLease or would permit termination, modification or would, individually or together with all acceleration under such other events, reasonably be expected Lease and (3) to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset knowledge of the ContributorRIF V Fund, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases Leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary RIF V Fund or any JV Entity its RIF V Fund Subsidiaries is a party or by which any Contributor, Contributor Subsidiary the RIF V Fund or JV Entity its RIF V Fund Subsidiaries or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and or other similar Laws affecting relating to creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Rexford Industrial Realty, Inc.), Merger Agreement (Rexford Industrial Realty, Inc.)
Properties. (a) The Properties are Schedule 6.18(a) sets forth a list of the common name and location of each parcel of real property owned directly, in fee simpleor leased (including ground leased) as lessee or sublessee, by the Persons set forth on Section 4.10 any Property Owner as of the Contributor Disclosure Letter date of this Agreement (all such real property interests, together with all right, title and interest of any Property Owner in and to (i) all buildings, structures and other improvements and fixtures located on or their direct or indirect wholly owned subsidiariesunder such real property and (ii) all easements, rights and other appurtenances to such real property, are individually referred to herein as a "Property" and collectively referred to herein as the "Properties"). Each Contributor Subsidiary or JV Entity listed as owning Schedule 6.18(a) sets forth a Property on Section 4.10 list of the Contributor Disclosure Letter common name and location of each parcel of real property which, as of the date of this Agreement, is insured under contract by any Property Owner for purchase by such Property Owner or which is required under a policy binding contract to be leased or subleased by any Property Owner as lessee or sublessee after the date of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except The applicable Property Owner owns good and marketable fee simple title or leasehold title (as applicable) to each of the Properties, in each case, free and clear of Liens, except for matters Company Permitted Liens that would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Contributor Company Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conductedNo Property Owner has received (i) written notice that any certificate, none permit or license from any Governmental Entity having jurisdiction over any of the Properties or any agreement, easement or other right of an unlimited duration that is necessary to permit the lawful use and operation of the buildingsbuildings and improvements on any of the Properties or that is necessary to permit the lawful use and operation of all utilities, fixtures parking areas, retention ponds, driveways, roads and other improvements comprising a part means of egress and ingress to and from any of the Properties is not in violation full force and effect as of any applicable building code, zoning ordinance or other law or regulationthe date of this Agreement, except for such violations that would notfailures to be in full force and effect that, individually or in the aggregate, have not had, and would not reasonably be expected to have have, a Contributor Company Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority , or of any pending written threat of modification or threatened proceedings for the rezoning cancellation of any Property or portion thereof except for such notices or proceedings that would notof same that, individually, individually or in the aggregate, has not had, and would not reasonably be expected to have have, a Contributor Company Material Adverse Effect or (ii) written notice of any uncured violation of any Laws affecting any of the Properties, which, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect.
(d) Except No certificate, variance, permit or license from any Governmental Entity having jurisdiction over any of the Properties or any agreement, easement or other right that is necessary to permit the current use of the buildings and improvements on any of the Properties or that is necessary to permit the current use of all parking areas, driveways, roads and other means of egress and ingress to and from any of the Properties has failed to be obtained or is not in full force and effect, except for matters that would notany of the foregoing as, individually or in the aggregate, have not had, and would not reasonably be expected to have have, a Contributor Company Material Adverse Effect, and neither Seller nor any Property Owner has received written notice of any outstanding threat of modification or cancellation of any such certificate, variance, permit or license.
(e) Schedule 6.18(e)(i) sets forth (i) each lease that was in effect on August 30, 2014 and to which any Property Owner are parties as lessors or sublessors, with respect to each of the applicable Properties (all such leases or subleases, together with all amendments, modifications, supplements, renewals and extensions related thereto, the "Leases") and (ii) the current rent annualized and security deposit amounts currently held for each Lease. Schedule 6.18(e)(ii) sets forth (x) each lease that was in effect on August 30, 2014 and to which any Property Owner are parties as lessees or sublessees, with respect to each of the applicable Properties (all such leases or subleases, together with all amendments, modifications, supplements, renewals and extensions related thereto, the "Master Leases") and (y) the current rent annualized and security deposit amounts currently held for each Master Lease.
(f) True, correct and complete copies of all Leases and Master Leases, in each case in effect as of the date hereof, have been made available to Purchaser. Except as set forth on Schedule 6.18(f), (i) to the Contributor’s Company's Knowledge, neither the Contributorno Property Owner is and no other party is in breach or violation of, or default under, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given Lease or received any notice of default with respect to any term or condition of any such Master Lease, (ii) to the Contributor’s Company's Knowledge, no event has occurred which would result in a breach or has been threatened violation of, or a default under, any Lease or Master Lease by any Property Owner, or, to the Company's Knowledge, any other party thereto (in writingeach case, which with or without the passage notice or lapse of time or the giving of noticetime), or both, would, individually or together with all such other events, constitute (iii) no tenant under a Lease is in monetary default under any such Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iiiiv) each of the leases (Lease and all amendments thereto or modifications thereof) to which the ContributorMaster Lease is valid, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and enforceable in full force accordance with its terms and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or effect with respect to the applicable Contributor Subsidiary or JV EntityProperty Owner and, and to the Contributor’s Company's Knowledge, each with respect to the other party parties thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable except as may be limited by bankruptcy, insolvency, reorganization, moratorium and or other similar Laws affecting creditors’ ' rights generally and subject, as to enforceability, to by general principles of equity (regardless of whether enforcement enforceability is sought considered in a proceeding in equity or at law or in equityLaw).
(fg) To As of the Contributor’s Knowledgedate of this Agreement, (i) no purchase option has been exercised under any Lease for which the purchase has not closed prior to the date of this Agreement, and (ii) except as previously disclosed pursuant to any Lease or Company Permitted Liens, to the Company's Knowledge, no tenant under party other than the applicable Property Owner, has any such Lease right to use or occupy any Property or any portion thereof.
(h) Except for Company Permitted Liens, Leases and Master Leases provided to Purchaser prior to the date hereof or as otherwise set forth in Schedule 6.18(h), (i) there are no unexpired option to purchase agreements, rights of first refusal or first offer or any other rights to purchase or otherwise acquire any Property or any portion thereof, (ii) there are no other outstanding rights or agreements to enter into any contract for sale, ground lease or letter of intent to sell or ground lease any Property or any portion thereof that is presently the subject owned by any Property Owner, which, in each case, is in favor of any voluntary party other than the applicable Property Owner, and (iii) to the Company's Knowledge, the transactions contemplated hereby will not give any Person the right to exercise any right or involuntary bankruptcy option to purchase or insolvency proceedingsotherwise acquire any Property.
(i) Except as set forth in Schedule 6.18(i) or pursuant to a Lease, except no Property Owner is a party to any agreement pursuant to which such Property Owner manages or manages the development of any real property for matters that would notany party other than the applicable Property Owner.
(j) Each Property Owner, as applicable, is in possession of title insurance policies or valid marked-up title commitments evidencing title insurance with respect to each Property (each, a "Title Insurance Policy"). A copy of each Title Insurance Policy in the possession of the Company has, upon request, been made available to Purchaser. No written claim has been made against any Title Insurance Policy, which, individually or in the aggregate, has had, or would reasonably be expected to have have, a Contributor Company Material Adverse Effect.
(k) Each Property Owner has good and valid title to, or a valid and enforceable leasehold interest in, or other right to use, all applicable Personal Property owned, used or held for use by it as of the date of this Agreement (other than property owned by tenants and used or held in connection with the applicable tenancy and other than property owned by any third-party managers), except as, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Company Material Adverse Effect. No Property Owner's ownership of or leasehold interest in any such Personal Property is subject to any Liens, except for Company Permitted Liens and Liens that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Schedule 6.18(k) sets forth all leased Personal Property of any Property Owner with monthly lease obligations in excess of $500,000 and that are not terminable upon thirty (30) days' notice.
(l) Schedule 6.18(l) lists the parties currently providing third-party property management services to the Properties and the number of Properties currently managed by each such party.
(m) Except as set forth in Schedule 6.18(m), no Property Owner has any obligations with respect to uncompleted tenant improvements, capital improvements or capital expenditures to be made by such Property Owner under any Lease.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Select Income REIT), Purchase and Sale Agreement (Senior Housing Properties Trust)
Properties. (a) The Properties are owned directlyEach Loan Party and each of its Subsidiaries has good record, valid and marketable title in fee simplesimple to, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct valid leasehold interests in, all Real Property necessary or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, used in the case ordinary conduct of certain Propertiesits business, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated defects in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would title as could not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. The property of each Loan Party and each of its Subsidiaries, taken as a whole, (i) no Contributor Subsidiaryis in good operating order, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party condition and repair (other than a Lease (as such term is hereinafter definedordinary wear and tear excepted) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, and (ii) no event has occurred or has been threatened in writing, constitutes all the property which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property is required for the continued use, occupancy, management, leasing business and operation operations of the Loan Parties as presently conducted.
(b) Appendix D to the Perfection Certificate dated the Closing Date contain a true and complete list of each interest in Real Property located in the United States (i) owned by any Borrower as of the date hereof and describes the type of interest therein held by such Borrower and whether such owned Real Property is leased and if leased whether the underlying Lease contains any option to purchase all or any portion of such Real Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option any interest therein or contains any right of first refusal relating to any sale of such Real Property or offer pursuant any portion thereof or interest therein and (ii) leased, subleased or otherwise occupied or utilized by any Borrower, as lessee, sublessee, franchisee or licensee, as of the date hereof and describes the type of interest therein held by such Borrower and, in each of the cases described in clauses (i) and (ii) of this Section 6.08(b), whether any Lease requires the consent of the landlord or tenant thereunder, or other party thereto, to the leases with respect to the sale of any PropertyTransactions.
(c) As presently conducted, none No Mortgage encumbers improved Real Property that is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards within the meaning of the operation National Flood Insurance Act of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for 1968 unless flood insurance available under such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or Act has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, obtained in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)Section 7.07.
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (MacDermid Group Inc.), Credit Agreement (MacDermid Group Inc.)
Properties. (a) The Properties are Section 3.13(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, (i) a list of all material real properties (by name and location) owned directly, in fee simple, by the Persons set forth on Section 4.10 Company or any SpinCo Entity (the “Owned Real Property”) and (ii) a list of the Contributor Disclosure Letter material leases, subleases or their direct other material occupancies to which the Company or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV any SpinCo Entity listed is a party as owning a tenant for real property (the “Real Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such PropertyLeases”).
(b) Except for matters that as would notnot reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, with respect to each Owned Real Property, (i) the Company or a SpinCo Entity has good and marketable title to such Owned Real Property, free and clear of all Liens (other than Permitted Liens), (ii) there are no (A) unexpired options to purchase agreements, rights of first refusal or first offer or any other rights to purchase or otherwise acquire such Owned Real Property or any portion thereof or a direct or indirect interest therein or (B) other outstanding rights or agreements to enter into any Contract for sale, ground lease or letter of intent to sell or ground lease such Owned Real Property, which, in each case, is in favor of any party other than the Company or any SpinCo Entity, (iii) policies of title insurance have been issued insuring, as of the effective date of each such insurance policy, fee simple title interest held by the Company or any SpinCo Entity and (iv) there are no existing, pending, or to the Knowledge of the Company, threatened condemnation, eminent domain or similar proceedings affecting such Owned Real Property.
(c) Except as would not reasonably be expected to have have, individually or in the aggregate, a Contributor Company Material Adverse Effect, (i) no Contributor Subsidiarythe Company or any SpinCo Entity has valid leasehold title to each real property subject to a Real Property Lease, JV Entity, nor any other party sufficient to any agreement affecting any Property allow each of the Company and the SpinCo Entities to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (conduct their business as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground leasecurrently conducted, (ii) no event has occurred each Real Property Lease under which the Company or has been threatened in writingany SpinCo Entity leases, which with subleases or without the passage of time or the giving of noticeotherwise occupies any real property is valid, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant , subject to the leases with respect Enforceability Exceptions, and (iii) neither the Company nor any SpinCo Entity or, to the sale Knowledge of the Company, any Propertyother party to such Real Property Lease has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Real Property Lease.
(cd) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that Except as would notnot reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each of the Company and each SpinCo Entity, in respect of all of its properties, assets and other rights that do not constitute real property or Intellectual Property (i) has valid title to all such properties, assets and other rights reflected in its books and records as owned by it free and clear of all Liens (other than Permitted Liens) and (ii) owns, has valid leasehold interests in or valid contractual rights to use all of such properties, assets and other rights (in each case except for Permitted Liens).
(e) Except as would not reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would nothave, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Company Material Adverse Effect, each material item of tangible personal property owned, leased or licensed by the Leases to which Company and the Contributor, any Contributor Subsidiary or any JV Entity SpinCo Entities is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, adequate for its present and intended use and operation and is in full force good operating condition, ordinary wear and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)tear excepted.
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Meredith Corp), Merger Agreement (IAC/InterActiveCorp)
Properties. (a) The Properties are owned directlyNeither the Seller nor any of its subsidiaries owns any real property. Section 5.16(a) of the Seller Disclosure Schedule lists all real property leased, in fee simple, subleased or licensed to or by the Persons set forth on Section 4.10 Seller or any of its subsidiaries, including any leases or subleases otherwise guaranteed by Seller or its subsidiaries (all of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiariesforegoing being collectively referred to as ‘‘leases and subleases’’). Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 The Seller has made available to the Seller true, complete and accurate copies of the Contributor leases and subleases (each as amended to date) relating to the leased property in Section 5.16(a) of the Seller Disclosure Letter Schedule. With respect to each such lease and sublease:
(i) the lease or sublease is insured under a policy valid, binding and enforceable obligation of title insurance the Seller or its subsidiary, as the owner case may be, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors’ rights and general principles of equity;
(ii) neither the Seller nor any of its subsidiaries, or to the knowledge of the fee simple estate (Seller, any other party, is in breach or violation of, or default under, any such lease or sublease, and no event has occurred, is pending or, to the knowledge of the Seller, is threatened, which, after the giving of notice or the lapse of time or both, would constitute a breach or default by the Seller or any of its subsidiaries, or to the knowledge of the Seller, any other party under such lease or sublease;
(iii) neither the Seller nor any of its subsidiaries has assigned, transferred, conveyed, mortgaged, deeded in trust or Encumbered any interest in the case of certain Propertiesleasehold or subleasehold, or further leased, subleased or licensed or permitted any other Person to use or occupy the property subject thereto; and
(iv) Seller or its subsidiaries have good, valid leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior or subleasehold title to the effective time of premises leased pursuant to the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Propertyleases and subleases, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that as would not, individually or in the aggregate, reasonably be expected to have a Contributor Seller Material Adverse Effect, (i) and there are no Contributor Subsidiary, JV Entity, nor any other party Encumbrances applicable to the real property subject to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary such lease or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entitysublease, except for Permitted Liensrecorded easements, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures covenants and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would restrictions which do not, individually or in the aggregate, materially impair the current uses or the occupancy by the Parent or its subsidiary, as the case may be, of the property subject thereto; and
(v) there are no consents, permissions or approvals by any third party pursuant to any lease or sublease which may be required with respect to the making of any lease or sublease by Seller or its subsidiaries, which have not been obtained, except for those, the failure of which would not reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would notexpected, individually or in the aggregate, reasonably be expected to have a Contributor Seller Material Adverse Effect.
(b) Except as set forth in Section 5.16(b) of the Seller Disclosure Schedule, the Parent and its subsidiaries own good title, free and clear of all Encumbrances, to all property and assets necessary to conduct the business of the Seller as currently conducted, except for (i) to Encumbrances reflected in the Contributor’s Knowledge, neither Seller Balance Sheet included in the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such LeaseSeller SEC Reports, (ii) to Encumbrances or imperfections of title which do not detract from the Contributor’s Knowledge, no event has occurred value or has been threatened in writing, which interfere with the present or without presently contemplated use of the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party assets subject thereto or affected thereby, (iii) Encumbrances for current Taxes not yet due and payable and (iv) Encumbrances on the creation of a Lien upon any asset landlord’s interest in the premises (subject to Section 5.16(a)(iv) above). The Seller and its subsidiaries, as lessees, have the right under valid and subsisting leases to use, possess and control all personal property leased by the Seller or its subsidiaries as now used, possessed and controlled by the Seller or its subsidiaries, as applicable. All of the Contributormachinery, equipment and other tangible personal property and assets owned or used by the Contributor’s Subsidiaries or the JV EntitiesSeller and its subsidiaries are in good condition, maintenance and repair, except for Permitted Liensordinary wear and tear, are useable in the ordinary course of business, and (iii) each of are reasonably adequate and suitable for the leases (and all amendments thereto or modifications thereof) uses to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectthey are being put.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Digitas Inc), Merger Agreement (Digitas Inc)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons Except as set forth on Section 4.10 of in Schedule 4.08(a), such Forward OP Merger Entity or its Forward OP Merger Entity Subsidiary is the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of, and, to the knowledge of such Forward OP Merger Entity, such Forward OP Merger Entity or its Forward OP Merger Entity Subsidiary is the owner of, the fee simple estate (or, in the case of certain Properties, the leasehold estate or the tenancy-in-common estate) of to the Property owned by such PropertyForward OP Merger Entity or its Forward OP Merger Entity Subsidiary, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions merger contemplated in this Contribution Agreementhereby, no Contributor Subsidiary or JV neither such Forward OP Merger Entity nor any of its Forward OP Merger Entity Subsidiaries shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Forward OP Merger Entity Material Adverse Effect, to the knowledge of such Forward OP Merger Entity, (i1) no Contributor Subsidiary, JV Entityneither such Forward OP Merger Entity nor its Forward OP Merger Entity Subsidiaries, nor any other party to any material agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given is in breach or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii2) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary such Forward OP Merger Entity or JV Entityits Forward OP Merger Entity Subsidiaries, except for Permitted Liens, and (iii3) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leasesLeases) are valid and binding and in full force and effect. No Contributor Subsidiary , subject to applicable bankruptcy, insolvency, moratorium or JV Entity has granted an option or right other similar Laws relating to creditors’ rights and general principles of first refusal or offer pursuant to the leases with respect to the sale of any Propertyequity.
(c) As To the knowledge of such Forward OP Merger Entity, as presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation“land use” Law, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Forward OP Merger Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Forward OP Merger Entity Material Adverse Effect, (i1) to the Contributor’s Knowledgeknowledge of such Forward OP Merger Entity, neither the Contributorsuch Forward OP Merger Entity, any Contributor Subsidiary nor any JV Entityits Forward OP Merger Entity Subsidiaries, nor any other party to any Lease, has given is in breach or received any notice of default with respect to any term or condition of any such Lease, (ii2) to the Contributor’s Knowledgeknowledge of such Forward OP Merger Entity, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease or would permit termination, modification or acceleration under such Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii3) to the knowledge of such Forward OP Merger Entity, each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary such Forward OP Merger Entity or any JV its Forward OP Merger Entity Subsidiaries is a party or by which any Contributor, Contributor Subsidiary such Forward OP Merger Entity or JV its Forward OP Merger Entity Subsidiaries or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and or other similar Laws affecting relating to creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (American Assets Trust, Inc.), Merger Agreement (American Assets Trust, Inc.)
Properties. (a) The Properties are owned directlyIssuer and its Subsidiaries have good title to, in fee simpleor good and valid leasehold interests in, by all property and assets reflected on the Persons set forth on Section 4.10 Issuer Balance Sheet or acquired after the Issuer Balance Sheet Date, except as have been disposed of since the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, Issuer Balance Sheet Date in the case Ordinary Course of certain Properties, the leasehold estate) of such PropertyBusiness and in compliance with this Agreement, in each case free and clear of all Liens except for (other than Permitted Liens Liens). The properties and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time assets owned or leased by Issuer and its Subsidiaries constitute all of the transactions contemplated properties and assets necessary for, and used or useful in, the conduct of their respective businesses in this Contribution Agreementthe places and in such manner in which such businesses are currently being conducted. Neither Issuer nor any of its Subsidiaries owns or has ever owned any interest in real property.
(i) Each lease, no Contributor Subsidiary sublease, license or JV Entity shall take other use or omit occupancy agreement (each, a “Lease”) under which Issuer or any of its Subsidiaries leases, subleases, licenses or otherwise uses or occupies any real property (whether as lessor or lessee) is valid and in full force and effect and (ii) neither Issuer nor any of its Subsidiaries, nor to Issuer’s Knowledge any other party to a Lease, has violated any provision of, or taken or failed to take any action to cause any Lien to attach to any Propertyact which, with or without notice, lapse of time, or both, would constitute a breach or default under the provisions of such Lease, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would notthose breaches or defaults that, individually or in the aggregate, are not and would not reasonably be expected to have a Contributor Material Adverse Effectbe material to Issuer and its Subsidiaries, (i) no Contributor Subsidiary, JV Entity, and neither Issuer nor any other party to of its Subsidiaries has received notice that it has breached, violated or defaulted under any agreement affecting any Property Lease. Section 3.14(b) of the Issuer Disclosure Schedule sets forth a true, correct and complete list of all Leases to which the Contributor, a Contributor Subsidiary Issuer or JV Entity any of its Subsidiaries is a party (other than a party, including all amendments, extensions, renewals and guarantees with respect thereto, in each case identifying the tenant or lessee and the landlord or lessor under each such Lease and the address of the real property associated with such Lease (as such term is hereinafter defined) for space within such Property)property, has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other eventsrights, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration title and interest of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary Issuer or any JV Entity is a party Subsidiary in and to leasehold improvements relating thereto, including security deposits, reserves or by which any Contributorprepaid rents paid in connection therewith, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leased Real Property”). Issuer has made available to Purchaser (in each case, together with all amendments, modifications, supplements, waivers or other changes thereto) true, correct and complete copies of all Leases”) is . The performance by Issuer of this Agreement and the transactions contemplated hereby will be valid and binding and not result in full force and effect.
(e) Except for matters that would notthe termination of, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each any increase of the Leases to which the Contributorany material amounts payable under, any Contributor Subsidiary Lease or any JV Entity is a material rights under any Lease or will require the Consent from any party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently other than Issuer. With respect to any Leased Real Property, Issuer and any of its Subsidiaries enjoys peaceful and undisturbed possession of the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse EffectLeased Real Property.
Appears in 2 contracts
Samples: Stock Purchase Agreement (ONCOSEC MEDICAL Inc), Stock Purchase Agreement (ONCOSEC MEDICAL Inc)
Properties. (a) The real Properties listed on Exhibit C are owned directly, in fee simple, by the Persons set forth Contributed Entities shown on Section 4.10 of the Contributor Disclosure Letter such Exhibit or their direct or indirect wholly owned subsidiaries, except that a portion of the Doubletree Seattle Airport Property is leased to the Contributed Entity that owns such Property as described in the Registration Statement. Each Contributor Subsidiary or JV Contributed Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple or leasehold estate (or, in the case of certain Properties, the leasehold estate) of such real Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution AgreementClosing Date, no Contributor Subsidiary or JV Entity iStar shall not take or omit to take any action to cause any Lien to attach to any Contributed Interests or any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor an iStar Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any Contributed Entity and no other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreementLease that remains uncured, includingwhich default, without limitationif not timely cured, any ground leasewould permit, subject to expiration of applicable cure periods, application of leasehold mortgagee cure rights and giving of required notices, termination of the related Lease, set off of material amounts under the related Lease or, in the case of a default by the tenant, termination of the tenant’s right to possession of the related leased premises, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreementLease that, if not timely cured would permit, subject to expiration of applicable cure periods, application of leasehold mortgagee cure rights and giving of required notices, termination of the related Lease, set off of material amounts under the related Lease or, in the case of a default by the tenant, termination of the tenant’s right to possession of the related leased premises, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Contributed Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Contributed Entity, and to the ContributoriStar’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Contributed Entity, and to the ContributoriStar’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Except as set forth in the Leases, no Contributed Entity has granted an option or right of first refusal or offer pursuant to the Leases with respect to the sale of any Property.
(fc) To the ContributoriStar’s Knowledge, except as previously disclosed to Safety or the CompanyOperating Partnership, no tenant under any such a Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor an iStar Material Adverse Effect.
Appears in 2 contracts
Samples: Initial Portfolio Agreement (Safety, Income & Growth, Inc.), Initial Portfolio Agreement (Safety, Income & Growth, Inc.)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons Except as set forth on Section 4.10 of in Schedule 4.08(a), such Forward REIT Merger Entity or its Forward REIT Merger Entity Subsidiary is the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of, and, to the knowledge of such Forward REIT Merger Entity, such Forward REIT Merger Entity or its Forward REIT Merger Entity Subsidiary is the owner of, the fee simple estate (or, in the case of certain Properties, the leasehold estate or tenancy-in-common estate) of to the Property owned by such PropertyForward REIT Merger Entity or its Forward REIT Merger Entity Subsidiary, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions merger contemplated in this Contribution Agreementhereby, no Contributor Subsidiary or JV neither such Forward REIT Merger Entity nor any of its Forward REIT Merger Entity Subsidiaries shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Forward REIT Merger Entity Material Adverse Effect, to the knowledge of such Forward REIT Merger Entity, (i1) no Contributor Subsidiary, JV Entityneither such Forward REIT Merger Entity nor its Forward REIT Merger Entity Subsidiaries, nor any other party to any material agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given is in breach or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii2) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary such Forward REIT Merger Entity or JV Entityits Forward REIT Merger Entity Subsidiaries, except for Permitted Liens, and (iii3) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leasesLeases) are valid and binding and in full force and effect. No Contributor Subsidiary , subject to applicable bankruptcy, insolvency, moratorium or JV Entity has granted an option or right other similar Laws relating to creditors’ rights and general principles of first refusal or offer pursuant to the leases with respect to the sale of any Propertyequity.
(c) As To the knowledge of such Forward REIT Merger Entity, as presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation“land use” Law, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Forward REIT Merger Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Forward REIT Merger Entity Material Adverse Effect, (i1) to the Contributor’s Knowledgeknowledge of such Forward REIT Merger Entity, neither the Contributorsuch Forward REIT Merger Entity, any Contributor Subsidiary nor any JV Entityits Forward REIT Merger Entity Subsidiaries, nor any other party to any Lease, has given is in breach or received any notice of default with respect to any term or condition of any such Lease, (ii2) to the Contributor’s Knowledgeknowledge of such Forward REIT Merger Entity, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease or would permit termination, modification or acceleration under such Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii3) to the knowledge of such Forward REIT Merger Entity, each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary such Forward REIT Merger Entity or any JV its Forward REIT Merger Entity Subsidiaries is a party or by which any Contributor, Contributor Subsidiary such Forward REIT Merger Entity or JV its Forward REIT Merger Entity Subsidiaries or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and or other similar Laws affecting relating to creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (American Assets Trust, Inc.), Merger Agreement (American Assets Trust, Inc.)
Properties. (a) The Properties are owned directly, Except in fee simple, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed any such case as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free has not had and clear of all Liens except for Permitted Liens and Liens, if any, given would not reasonably be expected to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would nothave, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, Effect on the Company: (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale real property owned by the Company or its Subsidiaries (the “Owned Real Property”), the Company or one of its Subsidiaries, as applicable, has good and marketable title to the Owned Real Property, free and clear of any Property.
Lien (cother than Permitted Liens); (ii) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term the real property leased, subleased or condition licensed to or otherwise occupied by the Company or its Subsidiaries (the “Leased Real Property”), the lease, sublease, license or occupancy agreement for such property is valid, and binding on and enforceable by/against the Company or its Subsidiaries, as applicable (except those which are cancelled, rescinded or terminated after the date of any such Leasethis Agreement in accordance with their terms and subject to applicable bankruptcy, (ii) insolvency, fraudulent transfers, reorganization, moratorium and other laws, affecting creditors’ rights generally and general principles of equity), and to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset knowledge of the ContributorCompany, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Lienseach other party thereto, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes none of the legalCompany or any of its Subsidiaries is in breach of or default under such lease, valid sublease, license or occupancy agreement and no event has occurred which, with notice, lapse of time or both, would constitute a breach or default by any of the Company or its Subsidiaries or permit termination, modification or acceleration by any third party thereunder; (iii) with respect to any real property leased, subleased or licensed by the Company or any of its Subsidiaries to a third party, the lease, sublease, license or occupancy agreement for such property is valid, enforceable and binding obligation on the parties thereto (except those which are cancelled, rescinded or terminated after the date of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, this Agreement in accordance with its terms, their terms and subject to applicable bankruptcy, insolvency, fraudulent transfers, reorganization, moratorium and similar Laws other laws, affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity equity) and in full force and effect and no party thereto is in breach of or default under such lease, sublease, license or occupancy agreement and no event has occurred which, with notice, lapse of time or both would constitute a breach or default by any party thereto or permit termination or modification thereof; and (regardless iv) all buildings, structures, fixtures and improvements included within the Owned Real Property and the Leased Real Property (the “Improvements”) are in good repair and operating condition, subject only to ordinary wear and tear, and are adequate and suitable for the purposes for which they are presently being used or held for use, and to the knowledge of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, there are no tenant under facts or conditions affecting any such Lease is presently of the subject of any voluntary or involuntary bankruptcy or insolvency proceedingsImprovements that, except for matters that would not, individually or in the aggregate, would reasonably be expected to have materially interfere with the current use, occupancy or operation thereof. Section 4.18 of the Company Disclosure Schedule contains a Contributor Material Adverse Effecttrue and complete list of all Owned Real Property and Leased Real Property.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Victor Technologies Group, Inc.), Merger Agreement (Colfax CORP)
Properties. (a) The Properties are owned directlySection 3.15(a) of the Vornado Disclosure Letter sets forth a list of (i) each Vornado Included Property, and (ii) whether the applicable Vornado Included Entity directly or indirectly owns such Vornado Included Property in fee simplesimple or directly or indirectly holds such Vornado Included Property pursuant to a leasehold, by the Persons ground leasehold or some other property interest. Except as expressly set forth on in Section 4.10 3.15(a) of the Contributor Vornado Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed Letter, as owning a Property on Section 4.10 of the Contributor Disclosure Letter date hereof there are no real properties that Newco, Newco OP or any Vornado Included Entity is insured under a policy obligated to buy, lease or sublease at some future date, or otherwise enter into any contract for sale, ground lease or letter of title insurance as the owner of the fee simple estate intent to sell or ground lease any such Vornado Included Property or any portion thereof (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free case, excluding any Vornado Leases and clear the Vornado Ground Leases), and no commissions, fees or other amounts are payable (or are to become payable) in connection with the acquisition or disposition of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Vornado Included Property.
(b) The applicable Vornado Included Entity owns good and marketable fee simple title or leasehold title (as applicable) to each of the Vornado Included Properties, in each case, free and clear of Liens, except for Vornado Permitted Liens. Except as set forth on Section 3.15(b) of the Vornado Disclosure Letter, the Vornado Included Entities have not granted, and to the knowledge of Vornado, none of the Vornado Included Properties is subject to, unexpired option to purchase agreements, rights of first refusal or first offer or any other rights to purchase or otherwise acquire any Vornado Included Property or any portion thereof.
(c) To the knowledge of the Vornado Parties, except as may be disclosed in the third party physical condition reports with respect to the Vornado Included Properties which have been delivered or otherwise made available to the JBG Parties (it being understood and agreed that a reference in a physical condition report to a document not otherwise delivered or made available to the JBG Parties shall not be deemed to constitute disclosure of the contents of such document), as of the date hereof, with respect to each Vornado Included Property, (i) such Vornado Included Property is supplied with utilities and other services as necessary to permit its continued operation as it is now being operated, (ii) such Vornado Included Property is in good working order sufficient for its normal operation in the manner currently being conducted, (iii) such Vornado Included Property has not suffered any casualty or other damage that has not been repaired, and (iv) there are no patent or latent structural, mechanical or other significant defects or deficiencies in the improvements on any Vornado Included Property, in each case, except as has not had and would not reasonably be expected to have a Vornado Material Adverse Effect; provided, however, that this Section 3.15(c) shall not apply to any Vornado Included Property that is an Under Construction and Predevelopment Property or is otherwise raw land, under development or not otherwise in active operation.
(d) No Vornado Included Entity has received (i) written notice that any certificate, permit or license from any Governmental Entity having jurisdiction over any of the Vornado Included Properties necessary to permit the lawful use and operation of the buildings and improvements on any of the Vornado Included Properties as currently used and operated or that is necessary to permit the lawful use and operation of all utilities and means of egress and ingress to and from any of the Vornado Included Properties for the current use and operation of the Vornado Included Properties is not in full force and effect as of the date of this Agreement, except for such failures to be in full force and effect that, individually or in the aggregate, has not had and would not reasonably be expected to have a Vornado Material Adverse Effect, or of any pending written threat of modification or cancellation of any of same, that would reasonably be expected to have a Vornado Material Adverse Effect, or (ii) written notice of any uncured violation of any Laws affecting any of the Vornado Included Properties which, individually or in the aggregate, has had or would reasonably be expected to have a Vornado Material Adverse Effect.
(e) Except as set forth in Section 3.15(e) of the Vornado Disclosure Letter, no condemnation, eminent domain or similar proceeding has occurred or to the knowledge of the Vornado Included Entities is pending with respect to any Vornado Included Property and, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Vornado Material Adverse Effect, no Vornado Included Entity has received any written notice to the effect that (i) any condemnation or rezoning proceedings are threatened with respect to any of the Vornado Included Properties, or (ii) any zoning regulation or ordinance (including with respect to parking), Board of Fire Underwriters rules, building, fire, health or other Law has been violated (and remains in violation) for any Vornado Included Property.
(f) Section 3.15(f) of the Vornado Disclosure Letter sets forth all ground leases affecting the interest of the Vornado Included Entities in any Vornado Included Property, other than ground leases as to which a Vornado Included Entity is both lessor and lessee, and all amendments, modifications (including pursuant to any estoppel), guarantees, renewals and extensions exercised related thereto (collectively, the “Vornado Ground Leases”). Vornado hereby represents that (a) Section 3.15(f) of the Vornado Disclosure Letter contains a true, complete and correct list of all Vornado Ground Leases to which any Vornado Included Entity is bound; (b) true, complete and correct copies of such Vornado Ground Leases have been delivered or made available to the JBG Parties; and (c) each such Vornado Ground Lease is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the applicable Vornado Included Entity and, to the knowledge of Vornado, with respect to the other parties thereto, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). As of the date hereof, there are no monetary or non-monetary material defaults under any Vornado Ground Lease to which any Vornado Included Entity is bound, by any Vornado Included Entity or any other party thereto. As of the date hereof, no Vornado Included Entity has sent or received any notice of any violation or breach of, or default under, any Vornado Ground Lease to which any Vornado Included Entity is bound.
(g) Except for matters discrepancies, errors or omissions that, individually or in the aggregate, would not reasonably be expected to have a Vornado Material Adverse Effect, the rent rolls for each of the Vornado Included Properties as of September 1, 2016 (with respect to office and retail properties) or as of September 29, 2016 (with respect to residential properties) that have been previously made available to the JBG Parties by the Vornado Included Entities, are true and correct and (i) correctly reference each tenant under each lease that was in effect as of as the respective dates of such rent rolls, and to which a Vornado Included Entity is a party as lessor with respect to each of the Vornado Included Properties (all leases, together with all amendments, modifications, supplements, renewals and extensions related thereto, the “Vornado Leases”) and (ii) identify the rent payable under the Vornado Lease as of such date. Except for discrepancies, errors or omissions that, individually or in the aggregate, would not reasonably be expected to have a Vornado Material Adverse Effect, the Vornado Included Entities have made available to the JBG Parties a list of all security deposit amounts currently held under the Vornado Leases as of September 30, 2016.
(h) True and complete (in all material respects) copies of all (x) Vornado Ground Leases and (y) Vornado Leases for space in excess of 25,000 square feet in or at any Vornado Included Properties (the “Material Vornado Leases”) (it being understood that a Vornado Lease shall constitute a Material Vornado Lease if there are other Vornado Leases with the same tenant at the same Vornado Included Property that, if aggregated with such Vornado Lease, would exceed 25,000 square feet), in each case in effect as of the date hereof and to the extent within Vornado’s possession and control, have been made available to the JBG Parties. Except as would not, individually or in the aggregate, reasonably be expected to have a Contributor Vornado Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Vornado Included Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any written notice of any violation or breach of, or default with respect to any term or condition of any such agreement, including, without limitationunder, any ground leaseMaterial Vornado Lease, which violation or breach remains outstanding and uncured, (ii) except as set forth on Section 3.15(h) of the Vornado Disclosure Letter, no event has occurred tenant under a Material Vornado Lease is in monetary or has been threatened in writingnon- monetary material default under such Material Vornado Lease, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, remains outstanding and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liensuncured, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the ContributorMaterial Vornado Lease is valid, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and enforceable in full force accordance with its terms and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effecteffect with respect to a Vornado Included Entity and, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledgeknowledge of Vornado, each with respect to the other party parties thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable except as may be limited by bankruptcy, insolvency, reorganization, moratorium and or other similar Laws affecting creditors’ rights generally and subject, as to enforceability, to by general principles of equity (regardless of whether enforcement enforceability is sought considered in a proceeding in equity or at law Law). Except as set forth on Section 3.15(h) of the Vornado Disclosure Letter, any and all material leasing commissions or brokerage fees payable by Vornado Included Entities with respect to any Material Vornado Leases have been paid in equity)full. To the knowledge of Vornado, except as set forth on Section 3.15(h) of the Vornado Disclosure Letter, all material tenant improvement allowances, relocation allowances or other inducements due with respect to the current unexpired term of each Material Vornado Lease have been paid in full. As of June 30, 2016, except as set forth on Section 3.15(h) of the Vornado Disclosure Letter, there are no other material Leasing Costs to be paid in the future with respect to any Material Vornado Leases.
(fi) To Except as set forth on Section 3.15(i) of the Contributor’s KnowledgeVornado Disclosure Letter, there are no material Tax abatements or exemptions specifically affecting the Vornado Included Properties, and the Vornado Included Entities have not received any written notice of (and the Vornado Included Entities do not have any knowledge of) any proposed increase in the assessed valuation of any of the Vornado Included Properties, except as previously disclosed to the Company, no tenant under in each case for any such Lease is presently the subject of any voluntary Taxes or involuntary bankruptcy or insolvency proceedings, except for matters assessment that have not had and would notnot reasonably be expected to have, individually or in the aggregate, a Vornado Material Adverse Effect.
(j) Except for Vornado Permitted Liens, as set forth in Vornado Leases and title documents made available to the JBG Parties prior to the date hereof or as would not reasonably be expected to have have, individually or in the aggregate, a Contributor Vornado Material Adverse EffectEffect and except as set forth on Section 3.15(j) of the Vornado Disclosure Letter, no Vornado Included Entity is a party to any (i) unexpired option to purchase agreements, rights of first refusal or first offer or any other rights to purchase or otherwise acquire any Vornado Included Property or any portion thereof that would materially adversely affect any Vornado Included Entity’s, ownership, ground lease or right to use a Vornado Included Property subject to a Material Vornado Lease, and (ii) other outstanding rights or agreements to enter into any contract for sale, ground lease or letter of intent to sell or ground lease any Vornado Included Property or any portion thereof that is owned by any Vornado Included Entity, which, in each case, is in favor of any party other than a Vornado Included Entity.
(k) No written unresolved claim has been made against any title insurance policy evidencing title insurance with respect to a Vornado Included Property which, individually or in the aggregate, would be material to such Vornado Included Property.
(l) Schedule B accurately states the outstanding principal amount of the Indebtedness secured by each Vornado Included Property as of the applicable Valuation Date.
(m) Newco and Newco OP do not directly own any real or personal property.
Appears in 2 contracts
Samples: Master Transaction Agreement (JBG SMITH Properties), Master Transaction Agreement (Vornado Realty Lp)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons Except as set forth on Section 4.10 Schedule 1.09(a), each applicable American Assets Entity or one of its Subsidiaries set forth on Schedule 1.09(a) is the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of of, and, to the Principal’s Knowledge, the applicable American Assets Entity or its Subsidiary is the owner of, the fee simple estate (or, in the case of certain Properties, the leasehold estate or tenancy-in-common estate) of to such PropertyAmerican Assets Entity’s Property identified on Schedule 1.09(a) as being owned by such American Assets Entity or its Subsidiary, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions mergers and contributions contemplated in this Contribution Agreementthe Formation Transaction Documentation, no Contributor Subsidiary or JV Entity none of the American Assets Entities nor any of their respective Subsidiaries shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i1) no Contributor SubsidiaryAmerican Assets Entity, JV Entitynor any of their respective Subsidiaries, nor any other party to any material agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property, but including any agreement that constitutes a Permitted Lien), has given is in breach or received any notice of default with respect to any term or condition of any such agreement, including(2) to the Principal’s Knowledge, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary American Assets Entity or JV Entityany of their respective Subsidiaries, except for Permitted Liens, and (iii3) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leasesLeases) are valid and binding and in full force and effect. No Contributor Subsidiary , subject to applicable bankruptcy, insolvency, moratorium or JV Entity has granted an option or right other similar Laws relating to creditors’ rights and general principles of first refusal or offer pursuant to the leases with respect to the sale of any Propertyequity.
(c) As To the Principal’s Knowledge, as presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation“land use” Law, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) The applicable American Assets Entity or its Subsidiary holds the lessor’s interest under the leases, licenses, tenancies, possession agreements and occupancy agreements with tenants of each Property (the “Leases”). Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i1) no American Assets Entity, nor any of its Subsidiaries, nor, to the ContributorPrincipal’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given is in breach or received any notice of default with respect to any term or condition of any such Lease, (ii2) to the ContributorPrincipal’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually permit termination, modification or together with all acceleration under such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted LiensLease, and (iii3) to the Principal’s Knowledge, each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity Leases is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and or other similar Laws affecting relating to creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) . To the ContributorPrincipal’s Knowledge, except as previously disclosed to the Company, no tenant under any of such Lease Leases is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Representation, Warranty and Indemnity Agreement (American Assets Trust, Inc.), Representation, Warranty and Indemnity Agreement (American Assets Trust, Inc.)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed Except as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given would not reasonably be expected to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would nothave, individually or in the aggregate, a Parent Material Adverse Effect, Parent and its Subsidiaries have good and defensible title to all of the Parent Oil and Gas Interests reflected in the Parent Reserve Reports or disclosed in the Parent SEC Documents and attributable to interests owned by Parent and its Subsidiaries, except for such Parent Oil and Gas Interests sold, used or otherwise disposed of since December 31, 2018 in the ordinary course of business, free and clear of all Liens other than Parent Permitted Liens, and other than any conditions, encroachments, easements, rights-of-way, restrictions and other encumbrances that do not adversely affect the existing use of real property subject thereto by the owner (or lessee to the extent a leased property) thereof in the operation of its business. Except as would not reasonably be expected to have have, individually or in the aggregate, a Contributor Parent Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property each Parent Oil and Gas Lease to which the Contributor, a Contributor Subsidiary Parent or JV Entity any of its Subsidiaries is a party (other than a Lease (as is valid and in full force and effect, subject to the limitation of such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground leaseenforcement by the Remedies Exceptions, (ii) none of Parent or any of its Subsidiaries (and, to Parent’s knowledge, no event third party operator) has occurred violated any provision of, or has been threatened in writingtaken or failed to take any act which, which with or without the passage notice, lapse of time or the giving of noticetime, or both, would, individually or together with all such other events, would constitute a default under any the provisions of such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted LiensParent Oil and Gas Lease, and (iii) none of Parent or any of its Subsidiaries has received written notice from the other party to any such Parent Oil and Gas Lease that Parent or any of its Subsidiaries, as the case may be, has breached, violated or defaulted under any Parent Oil and Gas Lease.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) either Parent or a Subsidiary of Parent has good and valid title to each real property (and each real property at which operations of Parent or any of its Subsidiaries are conducted) owned by Parent or any Subsidiary (but excluding the Parent Oil and Gas Interests) (such owned property collectively, the “Parent Owned Real Property”) and (ii) either Parent or a Subsidiary of Parent has a good and valid leasehold interest in each lease, sublease and other agreement under which Parent or any of its Subsidiaries uses or occupies or has the right to use or occupy any real property (or real property at which operations of Parent or any of its Subsidiaries are conducted) (but excluding the Parent Oil and Gas Interests) (such property subject to a lease, sublease or other agreement, the “Parent Leased Real Property” and such leases, subleases and other agreements are, collectively, the “Parent Real Property Leases”), in each case, free and clear of all agreements affecting Liens other than any Property required for Parent Permitted Liens, and other than any conditions, encroachments, easements, rights-of-way, restrictions and other encumbrances that do not adversely affect the continued use, occupancy, management, leasing and existing use of real property subject thereto by the owner (or lessee to the extent a leased property) thereof in the operation of such its business. Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (A) each Parent Real Property (exclusive of space leases) are valid and Lease is valid, binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant , subject to the leases with respect limitation of such enforcement by the Remedies Exceptions, and (B) no uncured default on the part of Parent or, if applicable, its Subsidiaries or, to the sale knowledge of Parent, the landlord thereunder, exists under any PropertyParent Real Property Lease, and no event has occurred or circumstance exists which, with the giving of notice, the passage of time, or both, would constitute a breach or default under a Parent Real Property Lease.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that Except as would notnot reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) there are no leases, subleases, licenses, rights or other agreements affecting any portion of the Parent Owned Real Property or the Parent Leased Real Property that would reasonably be expected to have a Contributor Material Adverse Effect. Neither adversely affect the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority existing use of any pending or threatened proceedings for the rezoning of any such Parent Owned Real Property or portion thereof the Parent Leased Real Property by Parent or its Subsidiaries in the operation of its business thereon, (ii) except for such notices arrangements solely among Parent and its Subsidiaries or proceedings among Parent’s Subsidiaries, there are no outstanding options or rights of first refusal in favor of any other party to purchase any Parent Owned Real Property or any portion thereof or interest therein that would not, individually, or in the aggregate, reasonably be expected to have adversely affect the existing use of Parent Owned Real Property by Parent in the operation of its business thereon, and (iii) neither Parent nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any person the right to use or occupy a Contributor Material Adverse Effectmaterial portion of a Parent Owned Real Property or Parent Leased Real Property that would reasonably be expected to adversely affect the existing use of such Parent Owned Real Property or Parent Leased Real Property by Parent or its Subsidiaries in the operation of its business thereon.
(d) Except for matters that as would notnot reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, there is no pending or, to the knowledge of Parent, threatened, appropriation, condemnation or like Action or Order affecting the Parent Owned Real Property or any part thereof or of any sale or other disposition of the Parent Owned Real Property or any part thereof in lieu of condemnation or other matters affecting and impairing the current use, occupancy or value thereof.
(e) Except as would not reasonably be expected to have have, individually or in the aggregate, a Contributor Parent Material Adverse Effect, all proceeds from the sale of Hydrocarbons produced from the Parent Oil and Gas Interests are being received by Parent in a timely manner and are not being held in suspense for any reason other than awaiting preparation and approval of division order title opinions for recently drilled Parent Xxxxx or awaiting on transfer orders for recently acquired Parent Oil and Gas Interests as of the date of this Agreement. Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) to the Contributor’s Knowledgeall rentals, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party shut-ins and similar payments owed to any Leaseperson or individual under (or otherwise with respect to) any Parent Oil and Gas Leases have been properly and timely paid and (ii) all royalties, has given or received any notice of default minimum royalties, overriding royalties and other Production Burdens with respect to any term or condition of Parent Oil and Gas Interests have been timely and properly paid (other than any such LeaseProduction Burdens which are being held in suspense by Parent or its Subsidiaries in accordance with applicable Law).
(f) All of the Parent Xxxxx and all water, CO2 or injection xxxxx located on the Parent Oil and Gas Leases or Parent Units or otherwise associated with a Parent Oil and Gas Interest have been drilled, completed and operated within the limits permitted by the applicable Parent Oil and Gas Contracts, Parent Oil and Gas Leases and applicable Law (iiother than Environmental Law and those relating to Taxes), and all drilling and completion (and plugging and abandonment) to of the Contributor’s KnowledgeParent Xxxxx and such other xxxxx and all related development, no event has occurred or has production and other operations have been threatened conducted in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together compliance with all such other eventsapplicable Laws except, constitute a default under any Leasein each case, or would, individually or together with all such other events, as would not reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would nothave, individually or in the aggregate, a Parent Material Adverse Effect.
(g) All Parent Oil and Gas Interests operated by Parent and its Subsidiaries have been operated in accordance with reasonable, prudent oil and gas field practices and in compliance with the applicable Parent Oil and Gas Leases and applicable Law (other than Environmental Law and those relating to Taxes), except where the failure to so operate would not reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would nothave, individually or in the aggregate, a Parent Material Adverse Effect.
(h) None of the Parent Oil and Gas Interests are subject to any preferential purchase, consent or similar right that would become operative as a result of the transactions contemplated by this Agreement, except for any such preferential purchase, consent or similar rights that would not reasonably be expected to have have, individually or in the aggregate, a Contributor Parent Material Adverse Effect.
(i) None of the Parent Oil and Gas Interests are subject to any Tax partnership agreement or provisions requiring a partnership income Tax Return to be filed under Subchapter K of Chapter 1 of Subtitle A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Carrizo Oil & Gas Inc), Merger Agreement (Callon Petroleum Co)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons Except as set forth on Section 4.10 of in Schedule 4.08(a), the Contributor Disclosure Letter RIF V REIT or their direct or indirect wholly owned subsidiaries. Each Contributor its RIF V REIT Subsidiary or JV Entity listed as owning a Property on Section 4.10 of is the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of, and, to the knowledge of the RIF V REIT, the RIF V REIT or its RIF V REIT Subsidiary is the owner of, good, marketable and insurable fee simple estate title (or, in the case of certain Properties, the leasehold estate or tenancy-in-common estate) of such Propertyto the Property owned by the RIF V REIT or its RIF V REIT Subsidiary, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time Effective Time, neither the RIF V REIT nor any of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity its RIF V REIT Subsidiaries shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor RIF V REIT Material Adverse Effect, (i1) no Contributor Subsidiaryneither the RIF V REIT nor any of its RIF V REIT Subsidiaries nor, JV Entityto the knowledge of the RIF V REIT, nor any other party to any material agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given is in breach or received any notice of default with respect to any term or condition of any such agreement, including(2) to the knowledge of the RIF V REIT, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary the RIF V REIT or JV Entityits RIF V REIT Subsidiary, except for Permitted Liens, or otherwise reasonably be expected to have a RIF V REIT Material Adverse Effect and (iii3) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leasesLeases) are valid and binding and in full force and effect. No Contributor Subsidiary , subject to applicable bankruptcy, insolvency, moratorium or JV Entity has granted an option or right other similar Laws relating to creditors’ rights and general principles of first refusal or offer pursuant to the leases with respect to the sale of any Propertyequity.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor RIF V REIT Material Adverse EffectEffect or that are otherwise disclosed on Schedule 4.08(c), (i1) neither the RIF V REIT, nor its RIF V REIT Subsidiaries, nor, to the Contributor’s Knowledgeknowledge of the RIF V REIT, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given is in breach or received any notice of default with respect to any term or condition of any such Lease, (ii2) to the Contributor’s Knowledgeknowledge of the RIF V REIT, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any LeaseLease or would permit termination, modification or would, individually or together with all acceleration under such other events, reasonably be expected Lease and (3) to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset knowledge of the ContributorRIF V REIT, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases Leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary RIF V REIT or any JV Entity its RIF V REIT Subsidiaries is a party or by which any Contributor, Contributor Subsidiary the RIF V REIT or JV Entity its RIF V REIT Subsidiaries or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and or other similar Laws affecting relating to creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Rexford Industrial Realty, Inc.), Merger Agreement (Rexford Industrial Realty, Inc.)
Properties. (a) 9.1 The Properties are owned directlythe only land, in fee simplebuildings and premises owned, controlled, used, leased or occupied by the Persons set forth on Section 4.10 any of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 Group Companies.
9.2 A Group Company is the sole legal and beneficial owner in possession of the Contributor Disclosure Letter whole of each of the Freehold Properties.
9.3 A Group Company has in its possession or held to its order the documents of title to all of the Freehold Properties.
9.4 No Encumbrances (other than the Permitted Encumbrances) exist over any of the Properties or any relevant deeds or documents relating thereto and no further Encumbrances have been consented to.
9.5 No Group Company has assigned any leasehold property of which it was the original tenant or in respect of which it entered into a covenant with the landlord to observe and perform the tenant’s covenants under that lease or has been or is insured a guarantor of a tenant under a policy lease without receiving a full indemnity in respect of title insurance as the owner its liability under that lease.
9.6 In relation to each of the fee simple estate (or, in the case of certain Leasehold Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.:
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor SubsidiaryGroup Company has received written notice that any covenants, JV Entity, nor any other party to any agreement affecting any Property to which conditions or agreements contained in the Contributor, a Contributor Subsidiary relevant leases on the part of the landlord or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given the tenant have not been complied with that remains outstanding or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, unresolved;
(ii) no event Group Company has occurred terminated or been notified of the termination of any of its leases and no such termination has been threatened by the respective landlord in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and ;
(iii) all agreements affecting there has been no written complaint by the landlord received by the tenant alleging any Property required for breaches nor any refusal to accept rent and there are no arrears regarding the continued use, occupancy, management, leasing rent and operation ancillary costs to be paid by any of such Property the Group Companies as tenant;
(exclusive of space leasesiv) no rent is or should be currently under review; and
(v) there are valid and binding and in full force and effect. No Contributor Subsidiary no current notices given by the landlord or JV Entity has granted an option the tenant or right of first refusal or offer proceedings pursuant to the leases Landlord and Xxxxxx Xxx 0000 (or equivalent legislation in the jurisdiction in which the relevant Property is located) or any other pending legal proceedings as regards or in connection with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have where a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity Group Company is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectparty.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Armstrong World Industries Inc)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed Except as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free has not had and clear of all Liens except for Permitted Liens and Liens, if any, given would not reasonably be expected to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would nothave, individually or in the aggregate, reasonably be expected to have a Contributor Parent Material Adverse Effect, (i) no Contributor SubsidiaryParent and its Subsidiaries have good, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary valid and marketable fee simple title (or JV Entity is a party (other than a Lease (as such term is hereinafter definedits jurisdictional equivalent) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of noticeto, or bothvalid leasehold interests in, wouldas the case may be, individually each parcel of real property owned or together with used by Parent or any of its Subsidiaries, free and clear of all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV EntityLiens, except for Permitted Liens, (ii) each Lease under which Parent or any of its Subsidiaries leases, subleases or licenses any real property is, subject to the Bankruptcy and (iii) all agreements affecting any Property required for the continued useEquity Exceptions, occupancy, management, leasing and operation of such Property (exclusive of space leases) are a valid and binding obligation of Parent or a Subsidiary of Parent (as the case may be) and, to the knowledge of Parent, each of the other parties thereto, and in full force and effect. No Contributor Subsidiary effect and enforceable in accordance with its terms against Parent or JV Entity has granted an option or right of first refusal or offer pursuant its Subsidiaries (as the case may be) and, to the leases with respect to the sale knowledge of any Property.
(c) As presently conductedParent, none each of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, parties thereto (except for such violations Leases that are terminated after the date of this Agreement in accordance with their respective terms; provided that if such termination is at the option of Parent or any of its Subsidiaries such termination must be in the ordinary course of business), (iii) neither Parent nor any of its Subsidiaries, nor, to the knowledge of Parent, any of the other parties thereto has violated or committed or failed to perform any act which (with or without notice, lapse of time or both) would notconstitute a default under any provision of any Lease, and (iv) neither Parent nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under any Lease, nor has Parent or any of its Subsidiaries delivered notice to any other party to a Lease that such other party has breached, violated or defaulted under any Lease that remains uncured as of the date hereof. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, the real property owned or used by Parent or any of its Subsidiaries and any plants, buildings, structures and equipment thereon owned or leased by Parent and its Subsidiaries have no defects, are in good operating condition and repair and have been maintained consistent with standards generally followed in the industry (given due account to the age and length of use of same, ordinary wear and tear excepted), are adequate and suitable for their present use. Except as has not had and would not reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would nothave, individually or in the aggregate, reasonably be expected to have a Contributor Parent Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice Parent and its Subsidiaries are in possession of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of noticeand have good title to, or both, would, individually valid leasehold interests in or together with all such other events, constitute a default valid rights under any Lease, or would, individually or together with all such other events, reasonably be expected contract to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributoruse, the Contributor’s Subsidiaries or the JV Entitiesmaterial machinery, except for Permitted Liensequipment, furniture, fixtures and (iii) each of the leases (other tangible material personal property and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary assets used by Parent or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectof its Subsidiaries.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Morgan Stanley), Merger Agreement (E Trade Financial Corp)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 5.15(a) of the Contributor Parent Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning sets forth a Property on Section 4.10 list of the Contributor Disclosure Letter address of each Parent Property and whether such Parent Property is insured under a policy of title insurance as the owner owned, leased or subleased. As of the fee simple estate (or, in the case date of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor neither Parent nor any Parent Subsidiary is under contract to purchase, lease or JV Entity shall take sublease any real property. Neither Parent nor any Parent Subsidiary owns any mortgage notes receivables or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure commercial mortgage indebtedness encumbering such Propertybacked or similar securities.
(b) Either Parent or a Parent Subsidiary owns good and marketable fee simple or leasehold (as applicable) title to each of the Parent Properties, in each case, free and clear of Liens, except for Parent Permitted Liens. Each Parent JV owns good and marketable fee simple or leasehold (as applicable) title to each real property owned or leased (including ground leased) as lessee or sublessee, by such Parent JV as of the date of this Agreement (including all buildings, structures and other improvements and fixtures located on or under such real property and all easements, rights and other appurtenances to such real property) (“Parent JV Properties”), except for Parent Permitted Liens.
(i) Except for matters the certificates, permits and licenses that would notare the subject of Section 5.14, which are addressed solely in such section, each certificate, permit and license from any Governmental Authority having jurisdiction over any of the Parent Properties or the Parent JV Properties and any agreement, easement or other right of an unlimited duration that is necessary to permit the lawful use and operation of the buildings and improvements on any of the Parent Properties or the Parent JV Properties or that is necessary to permit the lawful use and operation of all utilities, parking areas, retention ponds, driveways, roads and other means of egress and ingress to and from any of the Parent Properties or the Parent JV Properties is in full force and effect as of the date of this Agreement (and there is no pending written threat of modification or cancellation of any of same), except for such failures to be in full force and effect which, individually or in the aggregate, have not had, and would not reasonably be expected to have have, a Contributor Parent Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, and (ii) there exists no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in uncured violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would notLaws affecting any of the Parent Properties that, individually or in the aggregate, has had, or would reasonably be expected to have have, a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Parent Material Adverse Effect.
(d) Except No condemnation, eminent domain or similar proceeding is pending with respect to any owned Parent Property or any Parent JV Property, and neither Parent nor any Parent Subsidiary has received any written notice to the effect that (i) any condemnation or rezoning proceedings are threatened with respect to any of the Parent Properties or Parent JV Properties or (ii) any zoning regulation or ordinance (including with respect to parking), Board of Fire Underwriters rules, building, fire, health or other Law has been violated (and remains in violation) for matters that would notany Parent Property or Parent JV Property, except with respect to each of clauses (i) and (ii) as, individually or in the aggregate, has not had, and would not reasonably be expected to have have, a Contributor Parent Material Adverse Effect.
(e) The information set forth in the rent rolls for each of the Parent Properties, as of February 28, 2023, is true and correct in all material respects. There are no ground leases or other leases for the Parent Properties to which Parent or any Parent Subsidiary is the lessee or sublessee (collectively, “Parent Tenant Leases”).
(f) Except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Parent Material Adverse Effect, (i) neither Parent nor any Parent Subsidiary has given written notice of breach or violation of, or default under, any Parent Landlord Lease, nor, to the Contributor’s KnowledgeKnowledge of Parent, neither the Contributoris any counterparty in breach or violation of, or default under, any Contributor Subsidiary nor any JV Entity, nor any other party to any Parent Tenant Lease or Parent Landlord Lease, has given in each case, which violation or received any notice of default with respect to any term or condition of any such Leasebreach remains outstanding and uncured, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened tenant under a Parent Landlord Lease is in writingmonetary default under such Parent Landlord Lease, which with or without the passage of time or the giving of noticedefault remains outstanding and uncured, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (Parent Tenant Lease and all amendments thereto or modifications thereof) to which the ContributorParent Landlord Lease is valid, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and enforceable in full force accordance with its terms and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effecteffect with respect to Parent or a Parent Subsidiary and, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s KnowledgeKnowledge of Parent, each with respect to the other party parties thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable except as may be limited by bankruptcy, insolvency, reorganization, moratorium and or other similar Laws affecting creditors’ rights generally and subject, as to enforceability, to by general principles of equity (regardless of whether enforcement enforceability is sought considered in a proceeding in equity or at law Law), and (iv) neither Parent nor any Parent Subsidiary is responsible for any outstanding Tenant Improvements, Tenant Improvement allowances or leasing commissions required in equity)connection with any Parent Tenant Lease or Parent Landlord Lease.
(fg) To Except as set forth in the Contributor’s KnowledgeParent Title Insurance Policies, there are no pending Tax abatements or exemptions specifically affecting any of the Parent Properties, and neither Parent nor any Parent Subsidiary has received any written notice of any proposed increase in the assessed valuation of any Parent Property, except as previously disclosed to the Company, no tenant under in each case for any such Lease is presently the subject of any voluntary Taxes or involuntary bankruptcy or insolvency proceedings, except for matters that would notassessment that, individually or in the aggregate, has not had, and would not reasonably be expected to have have, a Contributor Parent Material Adverse Effect.
(h) Except for the Parent Permitted Liens, as set forth in the Parent Landlord Leases, or as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Parent Material Adverse Effect, (i) there are no unexpired option to purchase agreements, rights of first refusal or first offer or any other rights to purchase or otherwise acquire any Parent Property or any portion thereof, and (ii) there are no other outstanding rights or agreements to enter into any contract for sale, ground lease or letter of intent to sell or ground lease any Parent Property or any portion thereof that is owned by Parent or any Parent Subsidiary, which, in each case, is in favor of any party other than Parent or any Parent Subsidiary (a “Parent Third Party”).
(i) Except pursuant to a Parent Landlord Lease or any Parent Tenant Lease, neither Parent nor any Parent Subsidiary is a party to any agreement pursuant to which Parent or any Parent Subsidiary manages or manages the development of any real property for any Parent Third Party.
(j) For each Parent Property, except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Parent Material Adverse Effect, policies of (i) title insurance have been issued insuring, as of the effective date of each such insurance policy, the fee simple title interest (together with appurtenant easements) held by Parent or the applicable Parent Subsidiary with respect to the Parent Properties that are not subject to the Parent Tenant Leases, and (ii) leasehold insurance have been issued insuring, as of the effective date of each such insurance policy, the leasehold interest that Parent or the applicable Parent Subsidiary holds with respect to each Parent Property that is subject to a Parent Tenant Lease (each, a “Parent Title Insurance Policy” and, collectively, the “Parent Title Insurance Policies”). No written claim has been made against any Parent Title Insurance Policy, which, individually or in the aggregate, would be material to any Parent Property.
(k) To the Knowledge of Parent, no Parent Property is (i) under development as of the date hereof (other than normal repair and maintenance), or (ii) subject to a binding agreement for development or commencement of construction by Parent or a Parent Subsidiary, in each case other than those pertaining to customary capital repairs, replacements and other similar correction of deferred maintenance items in the ordinary course of business or as required pursuant to the Parent Landlord Leases or the Parent Tenant Leases.
(l) To the Knowledge of Parent, neither Parent nor any Parent Subsidiary nor any counterparty is in breach or violation of, or default under, any leasing brokerage or third party management services agreement or arrangement to Parent or any Parent Subsidiary, which breach or violation, individually or in the aggregate, has had, or would reasonably be expected to have, a Parent Material Adverse Effect.
(m) Parent and the Parent Subsidiaries and the Parent JVs have good and valid title to, or a valid and enforceable leasehold interest in, or other right to use, all tangible personal property owned, used or held for use by them as of the date of this Agreement (other than property owned by tenants and used or held in connection with the applicable tenancy), except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Parent Material Adverse Effect. None of Parent’s or any Parent Subsidiary’s or any Parent JV’s ownership of or leasehold interest in any such personal property is subject to any Liens, except for the Parent Permitted Liens and Liens that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Parent Material Adverse Effect.
(i) There are no structural defects, or violations of Law, relating to any Parent Property or Parent JV Property that, individually or in the aggregate, have had, or would reasonably be expected to have, a Parent Material Adverse Effect, and (ii) no physical damage has occurred at any Parent Property or Parent JV Property that, individually or in the aggregate, has had, or would reasonably be expected to have, a Parent Material Adverse Effect for which there is not insurance in effect covering the cost of the restoration and the loss of revenue, subject to reasonable deductibles and retention limits.
Appears in 2 contracts
Samples: Merger Agreement (Diversified Healthcare Trust), Merger Agreement (Office Properties Income Trust)
Properties. (a) The Properties are owned directlyCompany and its Subsidiaries have good title to, in fee simpleor good and valid leasehold interests in, by all property and assets reflected on the Persons set forth on Section 4.10 Balance Sheet or acquired after the Balance Sheet Date, except as have been disposed of since the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, Balance Sheet Date in the case ordinary course of certain Properties, the leasehold estate) of such Propertybusiness consistent with past practice and in compliance with this Agreement, in each case free and clear of all Liens except for (other than Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property).
(b) Except for matters that would not, individually or in Neither the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, Company nor any other party to of its Subsidiaries currently own, or have ever owned, any agreement affecting any Property to interest in real property.
(c) Each lease, sublease or license (each, a “Lease”) under which the ContributorCompany or any of its Subsidiaries leases, a Contributor Subsidiary subleases or JV Entity licenses any real property (whether as lessor or lessee) is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right Neither the Company nor any of first refusal or offer pursuant its Subsidiaries, nor to the leases Company’s Knowledge any other party to a Lease, has violated any provision of, or taken or failed to take any act which, with respect to or without notice, lapse of time, or both, would constitute a breach or default under the sale provisions of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulationsuch Lease, except for such violations that would notthose breaches or defaults that, individually or in the aggregateaggregate with all other Effects, have not and would not reasonably be expected to have a Contributor Company Material Adverse Effect. Neither the Contributor Company nor any Contributor Subsidiary nor any JV Entity of its Subsidiaries has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individuallyit, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given breached, violated or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default defaulted under any Lease. Neither the Company nor any of its Subsidiaries has assigned, pledged, mortgaged, hypothecated or would, individually otherwise transferred any Lease or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset interest therein. Section 3.13(c) of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, Disclosure Letter sets forth a true and (iii) each complete list of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary Company or any JV Entity of its Subsidiaries is a party party, in each case identifying the tenant or by which lessee and the Contributorlandlord or lessor under each such Lease, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation address of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance real property associated with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently and the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectmonthly rent payable thereunder.
Appears in 2 contracts
Samples: Merger Agreement (Timber Pharmaceuticals, Inc.), Merger Agreement (Timber Pharmaceuticals, Inc.)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 Each of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain PropertiesHoldings, the Borrower and the Subsidiaries has good title to, or valid leasehold estate) of such Propertyinterests in, in each case free all its real and clear of all Liens except for Permitted Liens and Liens, if any, given personal property material to secure mortgage indebtedness encumbering such Property. Prior to its business (including the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any PropertyMortgaged Properties), except for Permitted Encumbrances, Liens permitted under Section 6.02 and Liens, if any, given minor defects in title that do not interfere with its ability to secure mortgage indebtedness encumbering conduct its business as currently conducted or as proposed to be conducted or to utilize such Property.
(b) Except properties for matters that would not, individually or in their intended purposes except to the aggregate, extent such interference could not reasonably be expected to have result in a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(db) Except Each of Holdings, the Borrower and the Subsidiaries owns, or licenses pursuant to a valid and enforceable written agreement, all Intellectual Property and Software necessary for matters that would notand material to the operation and conduct of their businesses as currently conducted. To the knowledge of Holdings and the Borrower, individually the operation and conduct of the businesses of Holdings, the Borrower and the Subsidiaries (including the use or in the aggregatepractice of any Intellectual Property and Software therein) does not infringe, misappropriate or dilute any Intellectual Property owned by any other Person except as could not reasonably be expected to have result in a Contributor Material Adverse Effect. As of the Effective Date, no other Person has contested in writing any right, title or interest of Holdings, the Borrower or any Subsidiary in or relating to any material Intellectual Property or Software or challenged in writing the ownership, use, validity or enforceability of any material Intellectual Property owned by Holdings, the Borrower or any Subsidiary (including the use, validity or enforceability of any licenses to any Intellectual Property held by Holdings, the Borrower or any Subsidiary) except as could not reasonably be expected to result in a Material Adverse Effect. As of the Effective Date, there are no pending (or, to the knowledge of Holdings and the Borrower, threatened) actions, investigations, suits, proceedings or orders with respect to any such infringement, misappropriation or dilution or any other violation, impairment, contest or challenge in writing relating to material Intellectual Property except as could not reasonably be expected to result in a Material Adverse Effect. As of the date hereof, no judgment or order regarding any such infringement, misappropriation, dilution, violation, impairment, contest or challenge has been rendered by any competent Governmental Authority, no settlement agreement or similar contract has been entered into by Holdings, the Borrower or any Subsidiary with respect to any such infringement, misappropriation, dilution, violation, impairment, contest or challenge wherein such settlement agreement or similar contract could result in a Material Adverse Effect, (i) and none of Holdings, the Borrower or any Subsidiary has any reason to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition know of any valid basis for any claim for or based on any such Leaseinfringement, (ii) to the Contributor’s Knowledgemisappropriation, no event has occurred dilution, violation, impairment, contest or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, challenge except as could not reasonably be expected to cause result in a Material Adverse Effect. To the acceleration knowledge of Holdings and the Borrower, no Person has been or is infringing, misappropriating, diluting, violating or otherwise impairing any material obligation Intellectual Property of any party thereto or the creation of a Lien upon any asset of the ContributorHoldings, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary Borrower or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, except as could not reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought result in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(c) Schedule 3.05(c) sets forth the address of each real property that is owned or leased by the Borrower or any Subsidiary as of the Effective Date after giving effect to the Transactions.
(d) As of the Effective Date, none of Holdings, the Borrower or any Subsidiary has received notice of, or has knowledge of, any pending or contemplated condemnation proceeding affecting any Mortgaged Property or any sale or disposition thereof in lieu of condemnation that could reasonably be likely to result in a Material Adverse Effect.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (RedPrairie Holding, Inc.), Credit Agreement (RedPrairie Holding, Inc.)
Properties. (1) Issues relating to lease agreements are as below:
(a) All lease agreements are appropriate, have legal force and effect, are still valid, and will not become invalid or can be made invalid in any aspect;
(b) All covenants, liabilities, conditions and restrictions imposed on the Group according to any lease agreement have been appropriately complied with and implemented appropriately and on a real time basis;
(c) The Properties are owned directlyrents and other costs that need to be paid under all lease agreements have been paid on time on the due date. No rent has already been prepaid before the due date;
(d) Neither the Group nor any of its members has ever granted any waiver on any covenant, liability or restriction that a tenant shall comply with or implement under a lease;
(e) The Group has not collected any assignment fee or reached any agreement thereon;
(f) The Group has not reached any agreement on or been involved in fee simpleany mutual guarantee, by undertaking, waiver, change or modification relating to any lease;
(g) According to the Persons set forth on Section 4.10 knowledge and belief of the Contributor Disclosure Letter Seller, the tenant has not breached any covenant, condition, liability or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning restriction imposed thereon according to any lease agreement;
(h) The Group has acquired all the consents (if any) required for approving a Property on Section 4.10 lease from the mortgagee of the Contributor Disclosure Letter is insured underlying property and added related terms in the corresponding lease agreement;
(i) All lease agreements have been appropriately registered;
(j) The terms, option of extension and the detailed rules on all the rents and deposits that are and need to be paid of each lease agreement shall be thoroughly and correctly disclosed to the Buyers;
(k) The rent that a tenant shall pay under a policy lease agreement is not at a stage in which an adjustment is considered; and no reconstruction or refurbishment of title insurance a building is ignored in the adjustment to a rent;
(l) Except for those that have been disclosed to the Buyers before the transaction is completed, there exist no other options to renew any lease agreement or being exercised;
(m) In each lease agreement, there does not exist any unusual condition or any option allowing a tenant to purchase any part of any property;
(n) All moving notices that shall be delivered to a tenant so as to terminate such lease agreements (or any one of them) and allow the owner Group to have the right to collect the right of possession of the fee simple estate (or, in the case of certain Properties, the leasehold estate) related parts of such Property, in each case free properties upon the expiry of the validity term of such lease agreements and clear of all Liens except for Permitted Liens other lease termination notices provided by laws and Liensregulations, if any, given (hereinafter referred to secure mortgage indebtedness encumbering such Property. Prior to as the effective time of the transactions contemplated “Notice”) have been appropriately filled out and delivered appropriately in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Propertydue time.
(bo) Except for matters The Group or any related subordinate group has not engaged in anything that would not, individually might compromise or in impair the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received rights thereof under any notice of default with respect to any term tenant that has expired or condition of any such agreementwill expire before the transaction is completed, includingor, without limitationin particular, any ground leaseengaged in anything that might, (ii) no event has occurred either in an express or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other eventsimplied way, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Propertynew lease.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Equity Transfer Agreement (SinoTech Energy LTD), Equity Transfer Agreement (SinoTech Energy LTD)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 As of the Contributor Disclosure Letter date of this Agreement, Schedule 3.05(a) sets forth the address of each Material Real Estate Asset (or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) each set of such Property, in assets that collectively comprise one operating property) that is owned or leased by each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such PropertyLoan Party.
(b) Except Each of the Loan Parties and each of their Subsidiaries has good and valid fee simple title to or rights to purchase, or valid leasehold interests in, or easements or other limited property interests in, all its Real Estate Assets (including any Mortgaged Properties) and has good and marketable title to its personal property and assets, in each case, except (i) for matters defects in title that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes or (ii) where the failure to have such title would not reasonably be expected to have a Material Adverse Effect. All such properties and assets are free and clear of Liens, other than Permitted Liens.
(c) Each of the Loan Parties and each of their Subsidiaries own or otherwise have a license or right to use all rights in patents, trademarks, service marks, trade names, domain names, copyrights and other rights in works of authorship (including all copyrights embodied in software) and all other similar intellectual property rights (“IP Rights”) used in the conduct of the businesses of the Loan Parties and their Subsidiaries as presently conducted without any infringement or misappropriation of the IP Rights of third parties, except to the extent such failure to own or license or have rights to use would not, or where such infringement or misappropriation would not, have, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. No third party has interfered with, (i) no Contributor Subsidiaryinfringed upon, JV Entitymisappropriated, nor or otherwise come into conflict with any other party to any agreement affecting any Property to which of the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition IP Rights of any such agreement, including, without limitation, Loan Party or any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entitytheir Subsidiaries, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance extent such infringement or other law or regulation, except for such violations that misappropriation would notnot have, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither No claim or litigation regarding any of the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority IP Rights is pending or, to the knowledge of any pending Loan Party, threatened in writing, except to the extent such claim or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that litigation would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would notnot have, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to . A correct and complete list of all IP Rights registered with the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time United States Patent and Trademark Office or the giving of noticeUnited States Copyright Office or any relevant office or agency in any applicable foreign jurisdiction, or bothas applicable, wouldand domain names registered with third-party domain name registrars, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause owned by the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset Loan Parties and their Subsidiaries as of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity Closing Date is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equityset forth on Schedule 3.05(c).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Properties. (a1) The Properties are Company or one of its Subsidiaries has (i) good and marketable fee title to the real property owned directly, in fee simple, by the Persons set forth on Section 4.10 Company or any of its Subsidiaries (collectively, the Contributor Disclosure Letter "Owned Properties") and (ii) good and valid leasehold title or their direct other occupancy right to the real property leased, subleased or indirect wholly owned subsidiaries. Each Contributor Subsidiary licensed by the Company or JV Entity listed as owning a Property on Section 4.10 any of its Subsidiaries (collectively, the Contributor Disclosure Letter is insured under a policy of title insurance "Leased Properties") (the Owned Properties and Leased Properties being sometimes referred to herein collectively as the owner of the fee simple estate (or, in the case of certain "Company Properties, the leasehold estate) of such Property"), in each case free and clear of all Liens except for Permitted Liens and options to purchase or lease (in the case of the Owned Properties), leases, subleases, rights of first offer, conditions of limitation, easements, Liens, if anycovenants, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreementrights-of-way and other restrictions (collectively, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property"Title Matters"), except for Permitted such Liens and LiensTitle Matters, if anywhich individually or in the aggregate, given do not have a Material Adverse Effect or which do not materially and adversely affect the current use or value of any Company Properties significant to secure mortgage indebtedness encumbering such Propertythe Company and its Subsidiaries taken as a whole.
(b2) Except Each agreement under which real property is leased, subleased or licensed to the Company or one of its Subsidiaries (collectively, the "Company Leases") is in full force and effect in accordance with its respective terms and the Company or one of its Subsidiaries is the holder of the lessee's or tenant's interest thereunder and there exists no default under any of the Company Leases by the Company or any of its Subsidiaries and no circumstance exists which, with the giving of notice, the passage of time or both could result in such a default, except for such matters that would notor other circumstances which, individually or in the aggregate, reasonably be expected to do not have a Contributor Material Adverse Effect. Except as set forth in Section 3.14(b) of the Company Disclosure Schedule, (ithe consummation of the Merger or other transactions contemplated hereby does not violate the terms of any of the Company Leases, other than violations, which individually or in the aggregate do not have a Material Adverse Effect. Except as set forth in Section 3.14(b) of the Company Disclosure Schedule, there are no Contributor Subsidiary, JV Entity, nor any other party Company Leases subject to any Lien, sublease, assignment, license or other agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect granting to any term third party any interest in such Company Lease or condition any right to the use or occupancy of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV EntityLeased Property, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would notforegoing matters which, individually or in the aggregate, do not have a Material Adverse Effect.
(3) Each of the Company and its Subsidiaries has all permits necessary to own or operate its Owned Real Property and Leased Real Property as currently owned, and, to the knowledge of the Company, no such permits will be required, solely as a result of the Merger or the other transactions contemplated hereby, to be issued after the Closing in order to permit the Company following the Merger to continue to own or operate such Company Properties, other than any such permits the absence of which would not reasonably be expected to have a Contributor Material Adverse Effect. Neither Except as set forth in Section 3.14(b) of the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s KnowledgeCompany Disclosure Schedule, neither the Contributor, any Contributor Subsidiary Company nor any JV Entityof its Subsidiaries has received, nor any other party to any Lease, has given or received any notice of default with respect to any term Owned Real Property or condition Leased Real Property, any written notice of default or any written notice of noncompliance with respect to applicable federal, state, local and foreign laws and regulations relating to zoning, building, fire, use restriction or safety or health codes which have not been remedied in all respects which has a Material Adverse Effect. There is no pending or, to the knowledge of the Company, threatened condemnation or other governmental taking of any such Leaseof the Owned Real Property or Leased Real Property, which would have a Material Adverse Effect. All material buildings, structures, improvements and fixtures located on, under, over or within the Company Properties, taken as a whole, (iiA) to the Contributor’s Knowledge, no event has occurred or has been threatened are in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration good operating condition and repair and are structurally sound and free of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, defects; and (iiiB) each of the leases (are suitable, sufficient and appropriate in all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is respects for their current and will be valid and binding and in full force and effectcontemplated uses.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Xtra Corp /De/), Merger Agreement (Wheels Mergerco LLC)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed Except as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free has not had and clear of all Liens except for Permitted Liens and Liens, if any, given would not reasonably be expected to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would nothave, individually or in the aggregate, reasonably be expected to have a Contributor Company Material Adverse Effect, (i) no Contributor Subsidiarythe Company and its Subsidiaries have valid leasehold interests in each parcel of real property used by the Company or any of its Subsidiaries, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice free and clear of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV EntityLiens, except for Permitted Liens, (ii) each lease, sublease or license (each, a “Lease”) under which the Company or any of its Subsidiaries leases, subleases or licenses any real property is, subject to the Bankruptcy and (iii) all agreements affecting any Property required for the continued useEquity Exceptions, occupancy, management, leasing and operation of such Property (exclusive of space leases) are a valid and binding obligation of the Company or a Subsidiary of the Company (as the case may be) and, to the knowledge of the Company, each of the other parties thereto, and in full force and effect. No Contributor Subsidiary effect and enforceable in accordance with its terms against the Company or JV Entity has granted an option or right of first refusal or offer pursuant its Subsidiaries (as the case may be) and, to the leases with respect to the sale of any Property.
(c) As presently conducted, none knowledge of the operation Company, each of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, parties thereto (except for such violations Leases that are terminated after the date of this Agreement in accordance with their respective terms; provided that if such termination is at the option of the Company or any of its Subsidiaries such termination must be in the ordinary course of business), (iii) neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any of the other parties thereto has violated or committed or failed to perform any act which (with or without notice, lapse of time or both) would notconstitute a default under any provision of any Lease and (iv) neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under any Lease, nor has the Company or any of its Subsidiaries delivered notice to any other party to a Lease that such other party has breached, violated or defaulted under any Lease that remains uncured as of the date hereof. Neither the Company nor any of its Subsidiaries owns any real property or has owned any real property during the past five years. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the real property used by the Company or any of its Subsidiaries and any plants, buildings, structures and equipment thereon leased by the Company and its Subsidiaries have no defects, are in good operating condition and repair and have been maintained consistent with standards generally followed in the industry (given due account to the age and length of use of same, ordinary wear and tear excepted), are adequate and suitable for their present use. Except as has not had and would not reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would nothave, individually or in the aggregate, reasonably be expected to have a Contributor Company Material Adverse Effect, the Company and its Subsidiaries are (iand following the Closing will be) to in possession of and have (and following the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (iiClosing will have) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of noticegood title to, or both, would, individually valid leasehold interests in or together with all such other events, constitute a default valid rights under any Lease, or would, individually or together with all such other events, reasonably be expected contract to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributoruse, the Contributor’s Subsidiaries or material machinery, equipment, furniture, fixtures and other material personal property and assets used by the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary Company or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectof its Subsidiaries.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Eaton Vance Corp), Merger Agreement (Morgan Stanley)
Properties. (a) The Properties are owned directlyParent or a Parent Subsidiary is the legal and beneficial owner of, in and has good and marketable freehold or fee simple, by the Persons set forth on Section 4.10 simple title or valid leasehold title or license (as applicable) to each of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Parent Properties, the leasehold estate) of such Property, in each case case, free and clear of all Liens except for other than Parent Permitted Liens and Liens, if any, given except as would not reasonably be expected to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would nothave, individually or in the aggregate, reasonably be expected to have a Contributor Parent Material Adverse Effect. For the purposes of this Agreement, “Parent Permitted Liens” means (i) no Contributor Liens securing any Indebtedness of Parent or a Parent Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred Liens that result from any statute or has been threatened in writing, which with other Liens for Taxes or without the passage of time assessments that are not delinquent or the giving validity of noticewhich is being contested in good faith by appropriate proceedings and for which there are adequate reserves on the Parent Financial Statements (if such reserves are required pursuant to GAAP), (iii) Liens arising under any Parent Material Contracts or other service contracts, management agreements, leasing commission agreements, or bothother agreements or obligations set forth in Section 4.19(a)(iii) of the Parent Disclosure Letter or disclosed in the Parent SEC Documents, would(iv) any Parent Leases or any ground leases or air rights agreements affecting any Parent Property, individually (v) Liens imposed or together promulgated by Law or any Governmental Entity, including zoning regulations, permits and licenses, that (in each case) are not violated by any current use, occupancy or activity conducted by the Company or any Company Subsidiary, (vi) Liens that are disclosed on the existing title insurance policies of Parent or would be disclosed on an accurate survey, and, with all such respect to leasehold interests, Liens on the underlying fee or leasehold interest of the applicable ground lessor, lessor or sublessor, (vii) any cashiers’, landlords’, workers’, mechanics’, carriers’, workmen’s, repairmen’s and materialmen’s Liens and other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause similar Liens imposed by Law and incurred in the acceleration ordinary course of any material obligation of any party thereto business that are not yet delinquent or the creation validity of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except which is being contested in good faith by appropriate proceedings and for Permitted Lienswhich there are adequate reserves on the Parent Financial Statements (if such reserves are required pursuant to GAAP), and (iiiviii) all agreements affecting any other non-monetary Liens, limitations, restrictions or title defects that do not materially impair the value of the applicable Parent Property required for or the continued use, occupancy, management, leasing use and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, Parent Property as currently used and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)operated.
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Griffin-American Healthcare REIT II, Inc.), Merger Agreement (Northstar Realty Finance Corp.)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 As of the Contributor Disclosure Letter date of the First Amendment Effective Date, Schedule 3.05 sets forth the address of each parcel of real property that is owned by or their direct or indirect wholly owned subsidiariesleased to any Loan Party. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free leases and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity subleases is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding enforceable in accordance with its terms and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor no default by any party to any such lease or the sublease exists (after giving effect to any applicable Contributor Subsidiary notice requirement or JV Entity, and grace period) except to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under extent any such Lease is presently the subject failure of such leases to be in full force and effect, or any voluntary or involuntary bankruptcy or insolvency proceedingsdefault, except for matters that would notcould not reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Effect. Each of the Loan Parties and each of its Subsidiaries has good and indefeasible title to, or valid leasehold interests in, all of its real and personal property, free of all Liens other than those permitted by Section 6.02. To the Loan Parties’ knowledge, no holding, injunction, decision or judgment has been rendered by any Governmental Authority and none of the Loan Parties or any of their respective Subsidiaries has entered into any settlement stipulation or other agreement (except license agreements in the ordinary course of business) which would cancel the validity of the Loan Parties’ or any of their Subsidiaries’ rights in any Intellectual Property owned by the Company or any of its Subsidiaries (the “Borrower Intellectual Property”) in any respect that would reasonably be expected to have a Contributor Material Adverse Effect. To the Loan Parties’ knowledge, no pending claim has been asserted or threatened in writing by any Person challenging the use by the Company or any of its Subsidiaries of any Borrower Intellectual Property or the validity of any Borrower Intellectual Property, except in each case as would not reasonably be expected to have a Material Adverse Effect. To the Loan Parties’ knowledge, the use of any Borrower Intellectual Property by the Company or its Subsidiaries does not infringe on the rights of any other Person in a manner that would reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries have taken all commercially reasonable actions that in the exercise of their reasonable business judgment should be taken to protect the Borrower Intellectual Property, including Borrower Intellectual Property that is confidential in nature, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(b) Each Loan Party and each Subsidiary owns, or is validly licensed to use, all Material Intellectual Property used in, or necessary to conduct, its business as currently conducted, to the knowledge of each Loan Party, and the conduct of each Loan Party and each Subsidiary of its business does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, the Intellectual Property rights of any other Person.
Appears in 2 contracts
Samples: Credit Agreement (Bed Bath & Beyond Inc), Credit Agreement (Bed Bath & Beyond Inc)
Properties. (a) Neither the Company nor any Subsidiary owns any real property. The Properties are owned directly, in fee simple, by Company and the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to Subsidiaries have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property valid leasehold interest in all leases of real property to which the Contributor, a Contributor Subsidiary or JV Entity any of them is a party (other than collectively, the "LEASES"). A true and correct list of each such Lease is contained on Schedule 3.14(a). Each such Lease is a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding agreement of the Company or a Subsidiary, as the case may be, and is in full force and effect. No Contributor None of the Company, any Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant or, to the leases Knowledge of the Company, any other party thereto is in default or breach in any material respect under the terms of any such material Lease, and, to the Knowledge of the Company, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute a material default thereunder.
(b) With respect to all property and assets other than real property ("OTHER PROPERTY"), the sale Company and the Subsidiaries have good and valid title to, or a valid leasehold interest in, the Other Property (whether personal, tangible or intangible) used by them, located on their premises or reflected on the Balance Sheet or acquired after the Balance Sheet Date, except for any Other Property sold since the Balance Sheet Date in the ordinary course of any Propertybusiness consistent with past practices and except for defects in title or in the validity of leasehold interests that would not result in a material liability to the Company and the Subsidiaries.
(c) As presently conductedNo Lease or Other Property is subject to any Lien, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.except:
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to as of the Contributor’s Knowledgedate hereof, neither Liens disclosed on the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given Balance Sheet or received any notice of default with respect to any term or condition of any such Lease, on the Interim Balance Sheet;
(ii) to Liens for taxes not yet due or being contested in good faith (and for which adequate accruals or reserves have been established on the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and Balance Sheet);
(iii) each Liens created by operation of law;
(iv) Liens under the leases Post-Petition Bank Credit Agreement (and all amendments thereto which will be released at Closing);
(v) Liens disclosed on Schedule 3.14(c) hereto; and
(vi) Liens which do not materially detract from the value or modifications thereofmaterially interfere with any present or intended use of such property or assets (clauses (i) to which the Contributorthrough (vi) of this Section 3.14 are, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity"PERMITTED LIENS").
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Purchase Agreement (Kasper a S L LTD), Purchase Agreement (Kasper a S L LTD)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 As of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning Initial Borrowing Date, Schedule 9.05(a) sets forth a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free correct and clear complete list of all Liens except for Permitted Liens Owned Real Property and Liens, if any, given Leased Real Property of each Credit Party (other than Target and its Subsidiaries) and Schedule 9.05(b) sets forth a correct and complete list of all Owned Real Property and Leased Real Property of Target and its Subsidiaries which are expected to secure mortgage indebtedness encumbering such Propertybecome Credit Parties on or after the Merger Closing Date. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, as could not reasonably be expected to have a Contributor Material Adverse Effect, as of the Initial Borrowing Date (a) (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as each of such term is hereinafter definedLeases listed on Schedule 9.05(a) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, and (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation each of such Property (exclusive of space leases) are leases and subleases listed on Schedule 9.05(b), in each case, is valid and binding enforceable in accordance with its terms and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes (b) to the legal, valid and binding obligation knowledge of the Contributor Borrower and the other Credit Parties, no default by any party to any such Lease, lease or sublease exists. Except as set forth on Schedule 9.05(a) or (b), each of the applicable Contributor Subsidiary Credit Parties has good title to all of its Owned Real Property and personal property and valid leasehold interests in (or JV Entityotherwise has the right to use), and all of its Leased Real Property, in each case as is necessary to the Contributor’s Knowledgeconduct of its business in the ordinary course, each free of all Liens other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and than Permitted Liens. Notwithstanding anything to the Contributor’s Knowledgecontrary contained above or elsewhere in this Agreement, each other party theretofrom time to time, in accordance with its termsif it comes to the knowledge of the Borrower that any of the Owned Real Property or Leased Real Property listed on Schedule 9.05(b) was owned by an Excluded Subsidiary as of the Initial Borrowing Date, subject the Borrower shall notify the Administrative Agent of same and such Owned Real Property and/or Leased Real Property shall automatically be deemed removed from Schedule 9.05(b) effective as of the date hereof and (iii) if it comes to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles the knowledge of equity (regardless the Borrower within five Business Days of whether enforcement the Initial Borrowing Date that any of the Leased Real Property listed on Schedule 9.05(a) is sought in a proceeding at law or in equityleased by CFL then such Leased Real Property shall automatically be deemed removed from Schedule 9.05(a).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Bridge Loan Agreement (CF Industries Holdings, Inc.), Bridge Loan Agreement (CF Industries Holdings, Inc.)
Properties. (a) The Properties are owned directly, Except in fee simple, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed any such case as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free has not had and clear of all Liens except for Permitted Liens and Liens, if any, given would not reasonably be expected to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would nothave, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, Effect on the Company: (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale real property owned by the Company or its Subsidiaries (the “Owned Real Property”), the Company or one of its Subsidiaries, as applicable, has good, marketable indefeasible fee simple title to the Owned Real Property, free and clear of any Property.
Lien (cother than Permitted Liens); (ii) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term the real property leased, subleased or condition licensed to or otherwise occupied by the Company or its Subsidiaries (the “Leased Real Property”), the lease, sublease, license or occupancy agreement for such property is valid, and binding on and enforceable by/against the Company or its Subsidiaries, as applicable (except those which are cancelled, rescinded or terminated after the date of any such Leasethis Agreement in accordance with their terms and subject to applicable bankruptcy, (ii) insolvency, fraudulent transfers, reorganization, moratorium and other laws, affecting creditors’ rights generally and general principles of equity), and to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset knowledge of the ContributorCompany, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Lienseach other party thereto, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes none of the legalCompany or any of its Subsidiaries is in breach of or default under such lease, valid sublease, license or occupancy agreement and no event has occurred which, with notice, lapse of time or both, would constitute a breach or default by any of the Company or its Subsidiaries or permit termination, modification or acceleration by any third party thereunder; (iii) with respect to any real property leased, subleased or licensed by the Company or any of its Subsidiaries to a third party, the lease, sublease, license or occupancy agreement for such property is valid, enforceable and binding obligation on the parties thereto (except those which are cancelled, rescinded or terminated after the date of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, this Agreement in accordance with its terms, their terms and subject to applicable bankruptcy, insolvency, fraudulent transfers, reorganization, moratorium and similar Laws other laws, affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity equity) and in full force and effect and no party thereto is in breach of or default under such lease, sublease, license or occupancy agreement and no event has occurred which, with notice, lapse of time or both would constitute a breach or default by any party thereto or permit termination or modification thereof; and (regardless iv) all buildings, structures, fixtures and improvements included within the Owned Real Property (the “Improvements”) are in good repair and operating condition, subject only to ordinary wear and tear, and are adequate and suitable for the purposes for which they are presently being used or held for use, and to the knowledge of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, there are no tenant under facts or conditions affecting any such Lease is presently of the subject of any voluntary or involuntary bankruptcy or insolvency proceedingsImprovements that, except for matters that would not, individually or in the aggregate, would reasonably be expected to have interfere with the current use, occupancy or operation thereof. Section 4.18 of the Company Disclosure Schedule contains a Contributor Material Adverse Effecttrue and complete list of all Owned Real Property or Leased Real Property.
Appears in 2 contracts
Samples: Merger Agreement (Razor Holdco Inc.), Merger Agreement (Thermadyne Holdings Corp /De)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons Except as set forth on in Section 4.10 4.10(a) of the Contributor Parent Disclosure Letter Schedule, the Annual Report on Form 10-K for the year ended December 31, 2001 of Parent includes a correct and complete list and location of all material real property owned or leased by Parent and its subsidiaries or otherwise used by Parent and its subsidiaries in the conduct of their direct businesses or indirect wholly operations as of the date of this Agreement (collectively, and together with the land at each location and all buildings, structures and other improvements and fixtures located on or under such land and all easements, rights and other appurtenances to such land, the "PARENT PROPERTIES"). Except as set forth in the Parent SEC Reports filed prior to the date of this Agreement, each of the Parent Properties is owned or leased by Parent and its subsidiaries. Each Contributor Subsidiary Parent and its subsidiaries own or JV Entity listed as owning a Property on Section 4.10 lease each of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Parent Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any PropertyProperty Restrictions, except for (i) Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(bii) Except Property Restrictions imposed or promulgated by Law or by any Governmental Entity which are customary and typical for matters that similar properties or (iii) Property Restrictions which would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectinterfere materially with the current use of such property. To Parent's knowledge, none of the matters described in clauses (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) and (iii) above would have or would reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect on Parent.
(b) Parent and each of its subsidiaries have good and sufficient title to all the material personal and non-real properties and assets reflected in their books and records as being owned by them (including those reflected in the consolidated balance sheet of Parent and its subsidiaries as of December 31, 2001, except as since sold or otherwise disposed of in the usual, regular and ordinary course of business), free and clear of all Liens, except for Permitted Liens.
(c) Each of the tenant leases of Parent or its subsidiaries constitutes the valid and legally binding obligation of Parent or its subsidiaries, enforceable against Parent or its subsidiaries, as the case may be, in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors' rights or by general equity principles, and except as would not have or would not reasonably be likely to have a Material Adverse Effect on Parent. To Parent's knowledge, there is no event has occurred violation or has been threatened in writingdefault (nor does there exist any condition, which with or without upon the passage of time or the giving of notice, notice or both, would, individually would cause such a violation or together with all such other events, constitute a default by Parent) under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulationtenant lease, except for such violations or defaults that would notnot have, individually or in the aggregate, would not reasonably be expected likely to have have, a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.Effect on Parent
Appears in 2 contracts
Samples: Merger Agreement (JDN Realty Corp), Merger Agreement (Developers Diversified Realty Corp)
Properties. (a) The Properties are Company or one of its Subsidiaries has good title to all the properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned directly, in fee simple, by the Persons set forth Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on Section 4.10 a consolidated basis (except properties sold or otherwise disposed of since the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, date thereof in the case ordinary course of certain Propertiesbusiness), the leasehold estate) of such Property, in each case free and clear of all Liens except for other than the Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that as would not, individually or in the aggregate, have had or reasonably be expected to have a Contributor Company Material Adverse Effect, : (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property each lease or license pursuant to which the Contributor, a Contributor Subsidiary Company and the Company Subsidiaries leases or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received licenses any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject real property (collectively, the “Leases”) is and will be valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect.
; (eii) Except there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for matters the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that would notis material to the Company and its Subsidiaries, individually taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the aggregatecase of (ii) and (iii), as would not reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, including any amendments thereto.
(d) Neither the Company nor any of the Company Subsidiaries owns in fee any real property.
Appears in 2 contracts
Samples: Stock Purchase and Sale Agreement (Steel Excel Inc.), Stock Purchase and Sale Agreement (iGo, Inc.)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 Each of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain PropertiesHoldings, the Borrower and each Subsidiary has good title to, or valid leasehold estate) interests in, all its property necessary for the conduct of its business (including the Mortgaged Properties), except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or as proposed to be conducted or to utilize such Property, in each case properties for their intended purposes. All such property is free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted other than Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Propertyexpressly permitted by Section 6.02.
(b) Except Each of Holdings, the Borrower and each Subsidiary owns, or has rights to use, all trademarks, trade names, copyrights, patents and other intellectual property material to its business as currently conducted or as currently proposed to be conducted, and the use thereof by Holdings, the Borrower and each Subsidiary does not infringe upon the rights of any other Person, except for matters that would notany such infringements that, individually or in the aggregate, could not reasonably be expected to have result in a Contributor Material Adverse Effect. No claim or litigation regarding any trademarks, (i) no Contributor trade names, copyrights, patents or other intellectual property owned or used by Holdings, the Borrower or any Subsidiary is pending or, to the knowledge of Holdings, the Borrower or any Subsidiary, JV Entitythreatened against Holdings, nor the Borrower or any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would notthat, individually or in the aggregate, could reasonably be expected to have result in a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(dc) Except for matters that would notAs of the Effective Date, individually none of Holdings, the Borrower or in the aggregateany Subsidiary has received notice of, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributoror has knowledge of, any Contributor Subsidiary pending or contemplated condemnation proceeding affecting any Mortgaged Property or any sale or disposition thereof in lieu of condemnation. Neither any Mortgaged Property nor any JV Entity, nor any other party interest therein is subject to any Leaseright of first refusal, has given option or received any notice of default with respect other contractual right to any term purchase such Mortgaged Property or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectinterest therein.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (Affinia Group Intermediate Holdings Inc.), Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Properties. (a) The Properties are All of the real estate properties owned directly, in fee simple, or leased by the Persons set forth on Section 4.10 Company and each of its Subsidiaries as of the Contributor date hereof are listed in Section 3.01(q) of the Company Disclosure Letter Schedule. Each such property that is leased by the Company or their one of its Subsidiaries is designated as a leased property in Section 3.01(q) of the Company Disclosure Schedule. The Company has no direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed ownership interest in any real property as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as date hereof other than the owner properties owned by the Company and its Subsidiaries and set forth in Sections 3.01(s) and 3.01(q) of the Company Disclosure Schedule. The Company and each of its Subsidiaries own fee simple estate or leasehold title (or, each as indicated in the case of certain Properties, the leasehold estateSection 3.01(q) of such Propertythe Company Disclosure Schedule) to each of the real properties identified in Section 3.01(q) of the Company Disclosure Schedule (the "Company Properties"), in each case free and clear of all Liens liens, mortgages or deeds of trust, claims against title, charges which are liens, security interests or other encumbrances on title (collectively, "Encumbrances"), except for Permitted Liens such Encumbrances as, individually and Liensin the aggregate, could not reasonably be expected to have a Company MAE. Except for such of the following as, individually and in the aggregate, could not reasonably be expected to have a Company MAE, the Company Properties are not subject to any easements, rights of way, covenants, conditions, restrictions or other written agreements, laws, ordinances and regulations affecting building use or occupancy, or reservations of an interest in title (collectively, "Property Restrictions"), except for (i) Encumbrances and Property Restrictions, (ii) Property Restrictions imposed or promulgated by Law or any governmental body or authority with respect to real property, including zoning regulations, that do not and as a consequence of the Merger will not adversely affect the current use of the property, materially detract from the value of or materially interfere with the present use of the property, (iii) Encumbrances and Property Restrictions disclosed on existing title policies, commitments (and the documents listed as exceptions therein), reports, certificates of title, title opinions or current surveys (in each case copies of which title policies, commitments (and the documents listed as exceptions therein), reports and surveys have been, or will be prior to the Closing, delivered or made available to RECO), and (iv) mechanics', carriers', supplier's, workmen's or repairmen's liens and other Encumbrances, Property Restrictions and other limitations of any kind, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would notwhich, individually or in the aggregate, are not material in amount, do not and as a consequence of the Merger will not materially detract from the value of or materially interfere with the present use of any of the Company Properties subject thereto or affected thereby, and do not and as a consequence of the Merger will not otherwise materially impair business operations conducted by the Company and its Subsidiaries and which have arisen or been incurred only in the ordinary course of business. Except for such of the following as, individually and in the aggregate, could not reasonably be expected to have a Contributor Material Adverse EffectCompany MAE, valid policies of title insurance have been issued insuring the Company's or its applicable Subsidiary's fee simple (ior leasehold to the extent disclosed in Section 3.01(q) no Contributor Subsidiaryof the Company Disclosure Schedule) title to each of the Company Properties in amounts at least equal to the purchase price thereof or, JV Entityif acquired through merger, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liensstipulated value thereof, and (iii) all agreements affecting any Property required for such policies are, at the continued usedate hereof, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity effect and no claim has granted an option or right of first refusal or offer pursuant to been made against any such policy and the leases with respect to the sale Company has no knowledge of any Property.
(c) As presently conducted, none facts or circumstances which would constitute the basis for such a claim. Except for such of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would notfollowing as, individually or and in the aggregate, could not reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse EffectCompany MAE, (iA) to the Contributor’s Knowledgeno certificate, neither the Contributor, permit or license from any Contributor Subsidiary nor governmental authority having jurisdiction over any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the ContributorCompany Properties or any agreement, easement or other right which is necessary to permit the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, lawful use and (iii) each operation of the leases (buildings and all amendments thereto or modifications thereof) to which the Contributor, improvements on any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases Company Properties as currently operated or which is necessary to which permit the Contributorlawful use and operation of all driveways, roads and other means of egress and ingress to and from any Contributor Subsidiary or any JV Entity of the Company Properties (a "REA Agreement") has not been obtained and is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is not in full force and effect, and constitutes there is no pending threat of modification or cancellation of any of same nor is the legal, valid and binding obligation Company or any of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, its Subsidiaries currently in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant default under any such Lease is presently REA Agreement and the subject of any voluntary or involuntary bankruptcy or insolvency proceedingsCompany Properties are in full compliance with all governmental permits, licenses and certificates, except for matters that would not, individually such defaults which or in the aggregate, where such noncompliance could not reasonably be expected to have a Contributor Material Adverse EffectCompany MAE; (B) no written notice of any violation of any federal, state or municipal law, ordinance, order, regulation or requirement affecting any portion of any of the Company Properties has been issued by any governmental authority; (C) there are no material structural defects relating to any of the Company Properties; (D) there is no Company Property whose building systems are not in working order in any material respect; and (E) there is no physical damage to any Company Property in excess of $750,000 for which there is no insurance in effect (other than reasonable and customary deductibles) covering the full cost of the restoration. Except for such of the following as, individually and in the aggregate, could not reasonably be expected to have a Company MAE, the use and occupancy of each of the Company Properties complies in all material respects with all applicable codes and zoning laws and regulations, and the Company has no knowledge of any pending or threatened proceeding or action that will in any manner affect the size of, use of, improvements on, construction on, or access to any of the Company Properties, with such exceptions as are not material and do not interfere with the use made and proposed to be made of such Company Properties. Except for such of the following as, individually and in the aggregate, could not reasonably be expected to have a Company MAE, neither the Company nor any of its Subsidiaries has received any written notice to the effect that (x) any betterment assessments have been levied against, or any condemnation or rezoning proceedings are pending or threatened with respect to any of the Company Properties or (y) any zoning, building or similar law, code, ordinance, order or regulation is or will be violated by the continued maintenance, operation or use of any buildings or other improvements on any of the Company Properties or by the continued maintenance, operation or use of the parking areas. Except for such of the following as, individually and in the aggregate, could not reasonably be expected to have a Company MAE, following a casualty, each of the Company Properties could be reconstructed and used for hotel purposes under applicable zoning laws and regulations, except that in certain circumstances such reconstruction would have to comply with the dimensional requirements of applicable zoning laws and regulations in effect at the time of reconstruction. Except as otherwise could not reasonably be expected to have a Company MAE, there are no outstanding abatement proceedings or appeals with respect to the assessment of any Company Property for the purpose of real property taxes, and there are no agreements with any governmental authority with respect to such assessments or tax rates on any Company Property. None of the Company Properties is subject to any contractual restriction on the sale or other disposition thereof or on the financing or release of financing thereon.
Appears in 2 contracts
Samples: Merger Agreement (Meditrust Corp), Merger Agreement (La Quinta Inns Inc)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 None of the Contributor Disclosure Letter Company or their direct or indirect wholly owned subsidiaries. Each Contributor any Company Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take owns any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Propertyreal property.
(b) Except for Section 3.19(b) of the Company Disclosure Letter contains an accurate and complete list, as of the date of this Agreement, of all material real property that is leased, subleased, sub-subleased, or licensed to the Company or any Company Subsidiary, as applicable, and sets forth an accurate and complete list of any and all material leases, subleases, sub-subleases and licenses to which the Company or any Company Subsidiary is a party with respect thereto (collectively, the “Real Estate Leases”). Accurate and complete copies of all material Real Estate Leases (including all material modifications, amendments, supplements, waivers and side letters thereto) have been made available to Parent.
(c) Each Real Estate Lease (i) is in full force and effect and is valid and legally binding obligation of the parties thereto, enforceable in accordance with its terms, subject to: (A) Laws of general application relating to bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally; and (B) rules of law governing specific performance, injunctive relief and other equitable remedies (the foregoing (A) and (B), the “Enforceability Limitations”); (ii) has not been amended or modified in any material respect except as reflected in the modifications, amendments, supplements, waivers and side letters thereto made available to Parent; and (iii) except with respect to any Permitted Liens granted under the terms of any of the Real Estate Leases, has not been assigned in any manner by the Company or any of the applicable Company Subsidiaries, other than, in each case, any matters that would notthat, individually or in the aggregate, have not had and would not reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributorhave, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Company Material Adverse Effect.
(d) Except for matters that would not, individually or in Neither the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary Company nor any JV Entity, nor any other party to any Lease, of the Company Subsidiaries has given or received any a written notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to Real Estate Lease which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectremains uncured.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Arch Capital Group Ltd.), Merger Agreement (Watford Holdings Ltd.)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 As of the Contributor Disclosure Letter date of this Agreement, Schedule 3.05(a) sets forth the address of each Material Real Estate Asset (or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) each set of such Property, in assets that collectively comprise one operating property) that is owned or leased by each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such PropertyLoan Party.
(b) Except Each of the Loan Parties and each of their Subsidiaries has good and valid fee simple title to or rights to purchase, or valid leasehold interests in, or easements or other limited property interests in, all its Real Estate Assets (including any Mortgaged Properties) and has good and marketable tide to its personal property and assets, in each case, except (i) for matters defects in title that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes or (ii) where the failure to have such title would not reasonably be expected to have a Material Adverse Effect. All such properties and assets are free and clear of Liens, other than Permitted Liens.
(c) Each of the Loan Parties and each of their Subsidiaries own or otherwise have a license or right to use all rights in patents, trademarks, service marks, trade names, domain names, copyrights and other rights in works of authorship (including all copyrights embodied in software) and all other similar intellectual property rights (“IP Rights”) used in the conduct of the businesses of the Loan Parties and their Subsidiaries as presently conducted without any infringement or misappropriation of the IP Rights of third parties, except to the extent such failure to own or license or have rights to use would not, or where such infringement or misappropriation would not, have, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. No third party has interfered with, (i) no Contributor Subsidiaryinfringed upon, JV Entitymisappropriated, nor or otherwise come into conflict with any other party to any agreement affecting any Property to which of the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition IP Rights of any such agreement, including, without limitation, Loan Party or any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entitytheir Subsidiaries, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance extent such infringement or other law or regulation, except for such violations that misappropriation would notnot have, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither No claim or litigation regarding any of the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority IP Rights is pending or, to the knowledge of any pending Loan Party, threatened in writing, except to the extent such claim or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that litigation would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would notnot have, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to . A correct and complete list of all IP Rights registered with the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time United States Patent and Trademark Office or the giving of noticeUnited States Copyright Office or any relevant office or agency in any applicable foreign jurisdiction, or bothas applicable, wouldand domain names registered with third-party domain name registrars, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause owned by the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset Loan Parties and their Subsidiaries as of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity Closing Date is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equityset forth on Schedule 3.05(c).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Properties. 14.1 The properties referred to in Schedule 4 comprise all real properties owned or occupied (whether or not under licence or any other arrangements or otherwise) by or leased to the PRC Affiliate or in respect of which the PRC Affiliate has any interest whatsoever.
14.2 To the Knowledge of the Vendor, with respect to each of the Owned Properties:
(a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 ownership of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior Owned Properties belongs to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit PRC Affiliate which has good title to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.property;
(b) Except the PRC Affiliate has gained or applied for matters that would notall relevant approvals and certificates with respect to the Owned Properties it owns, individually or including but not limited to, the Inspection and Acceptance Filling Form for the Completion of the project construction to be respectively approved and signed by official departments of building, survey, design, construction and supervision, the property title certificates for the buildings over the Land, the legal document proving the property title owned by it, and the property title certificate.
(c) all the sale/transfer procedures as regards the Owned Properties have been completed and (where applicable) the sale/transfer has been validly registered in the aggregaterelevant department;
(d) The delay in construction of the Owned Properties has been approved by Governmental Authority and the penalty fee has been fully paid up (if there is any);
(e) all land premiums and/or purchase price payable in respect of the Owned Properties have been paid in full and no further land premiums or purchase price is or shall be payable;
(f) the Owned Properties are not currently subject to any sale or transfer or mortgage procedures and they are not leased or transferred or given to others as a gift, reasonably be expected and the PRC Affiliate has not entered into any agreement to have a Contributor Material Adverse Effectdo any of the foregoing; the Owned Properties are not involved in any litigation or subject to any court order for attachment, possession, etc.;
(g) the Owned Properties are not used by the PRC Affiliate for any unlawful purposes and has not violated any relevant land or construction regulations;
(h) the Owned Properties are free from any other mortgage, charge, lien, lease, encumbrance or any other third party rights and the relevant company has not entered into any other agreement to do any of the foregoing;
(i) no Contributor Subsidiary, JV Entity, nor the PRC Affiliate has not received from any other party to Governmental Authority or any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received competent authority any notice or order which may adversely affect its right to use the Owned Properties for the purpose for which it is presently being used;
(j) all requisite consents necessary for the use of default with respect the Owned Properties as it is presently being used by the PRC Affiliate have been duly obtained and are in full force, validity and effect;
(k) all the land user’s covenants contained in the Land Grant Contract, the Land Use Rights Certificate, Owned Properties Ownership Certificate and/or other documents applicable to any term or condition of any the Owned Properties have been duly performed and observed to the extent that such agreement, including, without limitation, any ground lease, obligations have fallen due;
(iil) no event has occurred or there has been threatened no change in writingthe terms and conditions of the Land Grant Contract, the Land Use Rights Certificate, Owned Properties Ownership Certificate and/or other documents applicable to the Owned Properties, which with or without the passage of time or the giving of notice, or both, would, individually or together with are all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right effect in favour of first refusal or offer pursuant to the leases with respect to the sale of any Property.PRC Affiliate;
(cm) As presently conducted, none no default (or event which with notice or lapse of time or both will constitute a default) by the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event PRC Affiliate has occurred or has been threatened is continuing under the Land Grant Contract, the Land Use Rights Certificate, Owned Properties Ownership Certificate and/or other documents applicable to the Owned Properties and it is not in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration breach of any material obligation laws, rules, regulations, guidelines, notices, circulars, orders, judgments, decrees or rulings of any party thereto court or the creation of a Lien upon any asset Governmental Authority in respect of the Contributoruse, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, occupation and (iii) each enjoyment of the leases Owned Properties; and
(n) all requisite licences, certificates and all amendments thereto or modifications thereof) to which authorities necessary for the Contributor, any Contributor Subsidiary or any JV Entity is a party or existing use of the Owned Properties by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is PRC Affiliate have been duly obtained and will be are valid and binding and in full force and effect.
14.3 To the Knowledge of the Vendor, with respect to each of the Leased Properties by the PRC Affiliate:-
(a) the PRC Affiliate has the legal right to occupy the property upon the terms set out in the relevant tenancy or lease agreement (each a “Tenancy Agreement”) and the property is being used for lawful purposes, which are permitted by the relevant Tenancy Agreement and the occupation has not violated any relevant regulations applicable to the property;
(b) all the rent and other payments payable by the PRC Affiliate have been paid up to date, and the user of the property occupied by the PRC Affiliate is in accordance with that provided for in the relevant Tenancy Agreement, all applicable legislation, statutory requirements, governmental or other orders, rules, directives or instruments affecting or appertaining to the use, occupation or enjoyment of the property and the terms of the relevant Tenancy Agreement have been duly complied with and the tenancy/lease is not subject to early termination due to default of the PRC Affiliate;
(c) the PRC Affiliate has in all respects duly performed, observed and complied with any covenants, restrictions, conditions or agreements of the relevant Tenancy Agreement, and there is no subsisting breach of any covenants, restrictions, conditions, or agreements of the relevant Tenancy Agreement and (without prejudice to the generality of the foregoing) no notice of any alleged breach of any of the terms of the relevant Tenancy Agreement has been served on or received by it;
(d) there is no claim or dispute between the PRC Affiliate and its landlord and the landlord is duly entitled to lease the land and/or buildings to it;
(e) Except for matters that would notthe relevant Tenancy Agreement has been duly executed by the parties thereto with all the requisite legal formalities duly attended to, individually or in and the aggregaterelevant Tenancy Agreement is good, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is valid and subsisting and in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).;
(f) To no circumstance which might affect or prejudice the Contributorrelevant Tenancy Agreement or otherwise affect the PRC Affiliate’s Knowledgeoccupation of the property has arisen or is likely to arise;
(g) the PRC Affiliate has not received from any Governmental Authority, except and no Governmental Authority has issued, any, notice or order which may adversely affect such tenancy/lease and/or continued enjoyment of the property in accordance with the terms of the relevant Tenancy Agreement;
(h) (where applicable) the requisite mortgagee’s consent has been duly obtained for the entering into of the relevant Tenancy Agreement and such consent is in full force, validity and effect;
(i) all options to renew/early termination contained in the relevant Tenancy Agreement are legally enforceable by the PRC Affiliate against the landlord;
(j) the relevant Tenancy Agreement contains usual provisions for tenancy agreement/lease of the relevant nature in the city where the relevant property is located and there are no unusual or onerous covenants or obligations on the part of the PRC Affiliate as previously disclosed tenant thereunder;
(k) since commencement of the tenancy/lease term, the PRC Affiliate has enjoyed uninterrupted use of the property and the terms of the relevant Tenancy Agreement are fully enforceable by the PRC Affiliate against the landlord;
(l) all the terms of the tenancy/lease are set out in the relevant Tenancy Agreement and the terms thereof have not been varied, modified, amended or supplemented verbally or by means of supplemental agreement(s) or correspondence between the landlord and the PRC Affiliate or otherwise;
(m) there is no event which may give rise to a right on the Companypart of the landlord to re-enter the property other than in case of emergency; and
(n) all requisite licences, certificates and authorities necessary for the existing use of the property by the PRC Affiliate have been duly obtained and are valid and in full force.
14.4 Each of the Tenancy Agreements is valid and subsisting and in no tenant way void or voidable and will not be liable to be terminated as a result of the execution of this Agreement (including all associated transactions) and the terms, covenants and conditions contained in the relevant Tenancy Agreement will be duly performed and observed.
14.5 In relation to each Tenancy Agreement:-
(a) no rights for a landlord to terminate the relevant Tenancy Agreement have arisen or become exercisable or, with lapse of time, will become exercisable;
(b) no circumstances have arisen or, with lapse of time, will arise under or as a result of which any such Lease is presently rights of the subject PRC Affiliate under the Tenancy Agreement (including any right to renew or extend the term of the Tenancy Agreement) has been or will be affected, prejudiced or terminated;
(c) no circumstances which would entitle a landlord to exercise any power of entry upon or to take possession of the relevant property or which would otherwise restrict or terminate the continued possession or occupation thereof have arisen or, with lapse time, will arise;
(d) no circumstances are likely to arise or, with lapse of time, may arise which may render any of the above untrue or inaccurate; and
(e) there are no unusual or onerous covenants or obligations on the part of the PRC Affiliate to be observed or performed.
14.6 There are no circumstances which would enable any person or entity to exercise any right of re-entry or taking possession of any voluntary of the properties under the Tenancy Agreements or involuntary bankruptcy any part thereof or insolvency proceedings, except for matters that (if applicable) which would not, individually otherwise restrict or in terminate the aggregate, reasonably be expected to have a Contributor Material Adverse Effectcontinued possession or occupation of such properties or any part thereof.
14.7 Main Union does not own or lease any properties.
Appears in 2 contracts
Samples: Sale and Purchase Agreement, Share Purchase Agreement (AGY Holding Corp.)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 Each of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain PropertiesHoldings, the Borrower and the Subsidiaries has good title to, or valid leasehold estate) of such Propertyinterests in, in each case free all its real and clear of all Liens except for Permitted Liens and Liens, if any, given personal property material to secure mortgage indebtedness encumbering such Property. Prior to its business (including the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any PropertyMortgaged Properties), except for Permitted Encumbrances, Liens permitted under Section 6.02 and Liens, if any, given minor defects in title that do not interfere with its ability to secure mortgage indebtedness encumbering conduct its business as currently conducted or as proposed to be conducted or to utilize such Property.
(b) Except properties for matters that would not, individually or in their intended purposes except to the aggregate, extent such interference could not reasonably be expected to have result in a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(db) Except Each of Holdings, the Borrower and the Subsidiaries owns or licenses pursuant to a valid and enforceable written agreement, all Intellectual Property (including Intellectual Property rights in Software) necessary for matters that would notand material to the operation and conduct of their businesses as currently conducted. To the knowledge of Holdings and the Borrower, individually the operation and conduct of the businesses of Holdings, the Borrower and the Subsidiaries (including the use or in the aggregatepractice of any Intellectual Property and Software therein) does not infringe, misappropriate or dilute any Intellectual Property owned by any other Person except as could not reasonably be expected to have result in a Contributor Material Adverse Effect. As of the Effective Date, within the last five (5) years, no other Person has contested in writing any right, title or interest of Holdings, the Borrower or any Subsidiary in or relating to any material Intellectual Property or challenged in writing the ownership, use, validity or enforceability of any material Intellectual Property owned by Holdings, the Borrower or any Subsidiary (including the use, validity or enforceability of any licenses to any Intellectual Property held by Holdings, the Borrower or any Subsidiary) except as could not reasonably be expected to result in a Material Adverse Effect. As of the Effective Date, there are no pending (or, to the knowledge of Holdings and the Borrower, threatened) actions, investigations, suits, proceedings or orders with respect to any such infringement, misappropriation or dilution or any other violation, impairment, contest or challenge in writing relating to material Intellectual Property except as could not reasonably be expected to result in a Material Adverse Effect. As of the Effective Date, (i) within the last five (5) years, no judgment or order regarding any such infringement, misappropriation, dilution, violation, impairment, contest or challenge has been rendered by any competent Governmental Authority and no settlement agreement or similar contract has been entered into by Holdings, the Borrower or any Subsidiary with respect to any such infringement, misappropriation, dilution, violation, impairment, contest or challenge wherein such settlement agreement or similar contract could reasonably be expected to result in a Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, and (ii) to none of Holdings, the Contributor’s KnowledgeBorrower or any Subsidiary has any knowledge of any valid basis for any claim for infringement, no event has occurred misappropriation, dilution, violation, impairment, contest or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, challenge except as could not reasonably be expected to cause result in a Material Adverse Effect. To the acceleration knowledge of Holdings and the Borrower, no Person has been or is infringing, misappropriating, diluting, violating or otherwise impairing any material obligation Intellectual Property of any party thereto or the creation of a Lien upon any asset of the ContributorHoldings, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary Borrower or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, except as could not reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought result in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(c) Schedule 3.05(c) sets forth the address of each real property that is owned or leased by the Borrower or any Subsidiary as of the Effective Date after giving effect to the Transactions.
(d) As of the Effective Date, none of Holdings, the Borrower or any Subsidiary has received notice of, or has knowledge of, any pending or contemplated condemnation proceeding affecting any Mortgaged Property or any sale or disposition thereof in lieu of condemnation that could reasonably be likely to result in a Material Adverse Effect.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Jda Software Group Inc), Second Lien Credit Agreement (Jda Software Group Inc)
Properties. (a) The Properties are Section 4.9 of the Company Disclosure Schedule contains a true and correct list of (i) each parcel of real property owned directly, in fee simple, (the "Owned Real Property") by the Persons set forth on Section 4.10 Company or any of its Subsidiaries, and (ii) each material parcel of real property leased or subleased or otherwise occupied by the Contributor Disclosure Letter Company or their direct any of its Subsidiaries as tenant or indirect wholly owned subsidiariessubtenant (the "Leased Real Property," together with the Owned Real Property, the "Real Property") together with a true and correct list of all such material leases, subleases or other similar agreements and any amendments, modifications or extensions thereto (the "Real Property Leases"). Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the The Company has good and indefeasible fee simple estate (or, in the case of certain Properties, the leasehold estate) of such title to its Owned Real Property, in each case free and clear of all Liens except for other than Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such PropertyEncumbrances.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant Subject to the leases with respect to the sale terms of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectits leases, each of the Leases Company and its Subsidiaries has a valid and subsisting leasehold estate in and the right to which quiet enjoyment to the Contributor, any Contributor Subsidiary or any JV Entity Leased Real Property for the full term of the lease thereof. Each Real Property Lease is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party theretoagreement, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcyof the Company or its Subsidiaries and of each other Person that is a party thereto, insolvencyand there is no, reorganizationand the Company has not received any written, moratorium or has Knowledge of, any other, notice, and similar Laws affecting creditors’ rights generally has no Knowledge, of any uncured material default (or any condition or event which, after notice or lapse of time or both, would constitute a material default) thereunder. Neither the Company nor any of its Subsidiaries has assigned, sublet, transferred, hypothecated or otherwise disposed of its interest in any Real Property Lease. No material penalties are accrued and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)unpaid under any Real Property Lease.
(fc) To The Company has delivered or provided access to Parent true and complete copies of all Real Property Leases.
(d) There is no claim, action or proceeding pending or, to the Contributor’s KnowledgeKnowledge of the Company, threatened, against the Company or any of its Subsidiaries or the Real Property by any Person which would materially affect the future use, occupancy or value of the Real Property or any part thereof. The Company Balance Sheet reflects all of the Real Property and personal property used by the Company and its Subsidiaries in their business or otherwise held by the Company or any of its Subsidiaries, except for (i) property acquired or disposed of in the ordinary and usual course of the business of the Company since the Company Balance Sheet Date, and (ii) real and personal property not required under GAAP to be reflected thereon or in the footnotes. The Company has good title to all material assets and properties listed on the Company Balance Sheet or thereafter acquired, free and clear of any Liens, except for Permitted Encumbrances and Permitted Personal Property Liens. All of the material fixed assets and properties including the improvements on the Real Property reflected on the Company Balance Sheet or thereafter acquired are in good condition and repair, ordinary wear and tear expected, and adequate and suitable for the requirements of the business as previously disclosed presently conducted by the Company, and there are no condemnation or appropriation proceedings pending or, to the Company's Knowledge, no tenant under any such Lease is presently threatened, against the subject of any voluntary Real Property or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectimprovements thereon.
Appears in 2 contracts
Samples: Merger Agreement (Headwaters Inc), Merger Agreement (Isg Resources Inc)
Properties. (a) The Properties are owned directly, in fee simple, Acquired Companies own no real properties. All of the real properties leased by the Persons Acquired Companies on the Closing Date are set forth on Section 4.10 in Schedule 3.7(a). True and correct copies of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiariesall lease agreements and any subsequent amendments of such lease agreements have been provided to Buyers and are listed in Schedule 3.7(a). Each Contributor Subsidiary or JV Entity listed Except as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, set forth in the case of certain PropertiesSchedule 3.7(a), the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach Acquired Companies are not subject to any Propertyreal property leases, subleases or occupancy agreements pursuant to which an Acquired Company is the lessee, sublessee or occupant of any real property. The applicable lease for each location set forth in Schedule 3.7(a) is in full force and effect and, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or as disclosed in the aggregate, reasonably be expected to have a Contributor Material Adverse EffectSchedule 3.7(a), (i) no Contributor Subsidiaryneither the applicable Acquired Company nor, JV Entityto the Knowledge of the Company, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity lessor is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, in material Breach thereunder and (ii) no event has occurred which (after notice or has been threatened in writing, which with or without the passage lapse of time or the giving of noticeboth) would become a material Breach under, or both, would, individually or together with all such other events, constitute a default under any such agreementwould otherwise permit material modification of, or wouldcancellation, individually acceleration or together with all such other eventstermination of, reasonably be expected to cause the acceleration of any material obligation of any party thereto applicable lease or would result in the creation of or right to obtain any Encumbrance upon, or any Person obtaining any right to acquire, any assets, rights or interests of the Acquired Companies. Furthermore, the consummation of the Contemplated Transactions will not result in a Lien upon material Breach under any asset of any Contributor Subsidiary or JV Entitythe material lease agreements set forth on Schedule 3.7(a).
(b) Except as disclosed in Schedule 3.7(b), except for Permitted Liens, and (iii) all agreements affecting any Property required no Consent is necessary for the continued useexecution, occupancy, management, leasing and operation delivery or performance of such Property (exclusive this Agreement by the Company or the other Transaction Documents to which it is a party or the consummation of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer the Contemplated Transactions by the Company pursuant to the leases with respect lease agreements set forth on Schedule 3.7(a) the failure of which to the sale of any Propertyobtain or make would be material.
(c) As presently conducted, none Except for properties and assets disposed of in the Ordinary Course of Business since the date of the operation Interim Balance Sheet, the Acquired Companies have good and marketable title to all of the buildingsmaterial properties and assets included in the Interim Balance Sheet, fixtures free and clear of any Encumbrances other improvements comprising a part than Permitted Encumbrances. The Acquired Companies own, lease, license or otherwise have the contractual right to use all of the Properties is material personal property used in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings necessary for the rezoning conduct of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse EffectBusiness as currently conducted.
(d) Except for matters that would not, individually or All statements and representations made in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened Tenant Estoppels are true and correct in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectrespects.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Compass Diversified Holdings)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 Company or a Subsidiary of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the Company owns good and marketable fee simple estate title (or, in the case of certain Properties, the or leasehold estate) to each of its real properties used in the ordinary course of its business (such real property, together with all buildings, structures and other improvements and fixtures located on or under such real property and all easements, rights of way and other appurtenances to such real property, collectively, the “Company Properties” and each, a “Company Property”). Section 3.7(a) of the Company Disclosure Schedule sets forth each Company Property owned or leased by the Company and its Subsidiaries, and, for each Company Property that is leased to a tenant, the following information: (i) the address of the Company Property and the name of the Company Subsidiary that owns such Company Property, in each case free (ii) the name of the tenant, (iii) the “concept”, and clear of all Liens except for Permitted Liens and Liens(iv) whether the Company Property currently is or, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time Company’s Knowledge, has ever been operated as a gas station. Except (i) as set forth in the Title Insurance Policies, (ii) for the Company Leases, (iii) for any easements granted in the ordinary course of business since the date of the transactions contemplated in this Contribution AgreementTitle Insurance Policies, no Contributor Subsidiary none of which has had or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have result in a Contributor Company Material Adverse Effect, and (iv) mortgage encumbrances related to securitizations or secured transactions, no other Person has any real property ownership interest in any of the Company Properties (other than those Company Properties owned in joint venture arrangements). The Company Properties are not subject to any rights of way, written agreements, covenants, laws, ordinances and regulations (including zoning regulations or building codes affecting building use or occupancy, or reservations of an interest in title (collectively, “Property Restrictions”) or liens (including liens for Taxes), mortgages or deeds of trust, claims against title, charges which are liens, security interests or other encumbrances on title (collectively, the “Encumbrances”), except for (A) Property Restrictions imposed or promulgated by law or any Governmental Entity with respect to real property, including zoning regulations which would not reasonably be expected to result in a Company Material Adverse Effect, (iB) no Contributor SubsidiaryProperty Restrictions and Encumbrances disclosed on the Title Insurance Policies or existing surveys and easements granted in the ordinary course of business since the date of the Title Insurance Policies, JV Entity, nor any other party none of which would adversely effect the tenant’s obligation to any agreement affecting any Property to which pay rent under the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a applicable Company Lease (as such term is hereinafter defined) for space within such Propertydefined below), has given or received any notice of default with respect to any term or condition of any such agreement(C) mechanics’, includingcarriers’, without limitationworkmen’s and repairmen’s liens and other Encumbrances and Property Restrictions, any ground lease, (ii) no event has occurred or has been threatened in writingif any, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, would not reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of result in a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted LiensCompany Material Adverse Effect, and (iiiD) all agreements affecting any Property required liens for the continued use, occupancy, management, leasing Taxes not yet due and operation of such Property payable (exclusive of space leasesitems (i) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
– (civ) As presently conducted, none of the operation preceding sentence and the foregoing items (A) – (D), the “Permitted Encumbrances”). There is no default under any of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that Permitted Encumbrances which would not, individually or in the aggregate, reasonably be expected to have result in a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Company Material Adverse Effect.
(b) Valid policies of title insurance (“Title Insurance Policies”) have been issued or irrevocably committed to be issued insuring the Company’s or the applicable Company Subsidiary’s fee simple title (or leasehold estate) in each of the Company Properties owned by it in amounts at least equal to the purchase price thereof paid by Company or its Subsidiary in the case of Company Properties owned by the Company or any of its Subsidiaries, subject only to matters and exceptions disclosed in such policies, none of which would adversely effect the tenant’s obligation to pay rent under the applicable Company Lease. Such policies are, at the date hereof, in full force and effect and no written claim has been made against any of the Title Insurance Policies.
(c) There has been no physical damage to any Company Properties which would be reasonably expected to result in a Company Material Adverse Effect after giving effect to any applicable insurance.
(d) Except for matters Neither Company nor any of the Subsidiaries of the Company nor, to the Company’s Knowledge, any tenant under a Company Lease, has received any notice with respect to any Company Property, and neither the Company nor any of the Subsidiaries has any Knowledge, to the effect that any condemnation or rezoning proceedings are pending or threatened which would not, individually or in the aggregate, reasonably be expected to have result in a Contributor Company Material Adverse Effect. All work to be performed, (i) payments to be made and actions to be taken by the Company or any of its Subsidiaries prior to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party date hereof pursuant to any Leaseagreement entered into with a Governmental Entity in connection with a site approval, has given zoning reclassification or received other similar action (e.g., local improvement district, road improvement district, environmental mitigation) material to Company and any notice of default with respect to any term its Subsidiaries taken as a whole have been performed, paid or condition of any such Leasetaken, (ii) as the case may be, and to the ContributorCompany’s Knowledge, no event has occurred planned or has been threatened in writingproposed work, which with payments or without actions that may be required after the passage date hereof pursuant to such agreements are material to Company and any of time or the giving of notice, or both, would, individually or together with all such other events, constitute its Subsidiaries taken as a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectwhole.
(e) Except for matters Neither the Company nor any Subsidiary has engaged any property manager that would not, individually is not the Company or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each Subsidiary of the Leases to which the Contributor, Company for any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)Company Property.
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Trustreet Properties Inc), Merger Agreement (Trustreet Properties Inc)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed Except as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given would not reasonably be expected to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would nothave, individually or in the aggregate, reasonably be expected to have a Contributor Parent Material Adverse Effect, (i) no Contributor SubsidiaryParent and its Subsidiaries have good title to, JV Entityor valid leasehold interests in, nor any other party to any agreement affecting any Property to which all property and assets reflected on the ContributorParent Balance Sheet or acquired after the Balance Sheet Date, a Contributor Subsidiary or JV Entity is a party (except as have been disposed of since the Balance Sheet Date in the ordinary course of business, free and clear of all Liens other than a Lease Permitted Liens.
(as such term is hereinafter definedb) for space within such Property), has given or received any notice of default Except with respect to any term Oil and Gas Properties, Section 4.14(b) of the Parent Disclosure Schedule sets forth a list of (i) all real property owned by Parent or condition any of any its Subsidiaries (each such agreementproperty, including, without limitation, any ground lease, a “Parent Owned Real Property”) and (ii) no event has occurred all material real property leased by Parent or has been threatened in writingany of its Subsidiaries (each such property, which with or without the passage of time or the giving of notice, or both, would, individually or a “Parent Leased Real Property” and together with all such other eventsthe Parent Owned Real Property, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any “Parent Real Property”).
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that Except as would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Contributor Parent Material Adverse Effect. Neither the Contributor Effect and except for Permitted Liens, neither Parent nor any Contributor Subsidiary nor of its Subsidiaries: (i) lease or grant any JV Entity has received Person the right to use or occupy all or any written notice from a Governmental Authority part of any pending Parent Owned Real Property, or threatened proceedings for the rezoning (ii) has granted any Person an option, right of any first offer, or right of first refusal to purchase such Parent Owned Real Property or any portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectinterest therein.
(d) Except for matters that as would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Contributor Parent Material Adverse Effect, (i) i)Parent or one of its Subsidiaries has a valid leasehold interest in all Parent Leased Real Property, in each case as to the Contributor’s Knowledgesuch leasehold interest, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any free and clear of all Liens other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, than Permitted Liens and (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of Parent and its Subsidiaries is in compliance in all material respects with the terms of all leases (and all amendments thereto or modifications thereof) of Parent Leased Real Property to which the Contributor, any Contributor Subsidiary or any JV Entity it is a party or by and under which any Contributorit is in occupancy, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity such lease is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation agreement of (A) Parent or its Subsidiary, as the Contributor or the applicable Contributor Subsidiary or JV Entitycase may be, and (B) to the ContributorParent’s Knowledgeknowledge, each other party thereto, enforceable against each Contributor Subsidiary Parent or JV Entitysuch Subsidiary, and as the case may be, and, to the ContributorParent’s Knowledgeknowledge, each against the other party or parties thereto, in each case, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subjectthe Remedies Exception.
(e) Except as set forth on Section 4.14(e) of the Parent Disclosure Schedule, as of the date hereof, Parent has not received any written notice that all or any portion of material Parent Real Property is subject to enforceabilityany governmental order to be sold or is being condemned, to general principles expropriated or otherwise taken by any Governmental Authority with or without payment of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)compensation therefor.
(f) To Except for any Permitted Liens and as set forth in Section 4.14(f) of the ContributorParent Disclosure Schedule, to Parent’s Knowledgeknowledge (i) there are no material contractual or legal restrictions that prevent Parent or any of its Subsidiaries from using any Parent Real Property for its current use, except as previously disclosed to and (ii) all structures and other buildings on the Company, no tenant under any Parent Real Property are in operating condition and none of such Lease structures or buildings is presently the subject in need of any voluntary maintenance or involuntary bankruptcy or insolvency proceedings, repairs except for matters that would notordinary, individually or routine maintenance and repairs, and except for ordinary wear and tear in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectall material respects.
Appears in 2 contracts
Samples: Merger Agreement (Talos Energy Inc.), Merger Agreement (Talos Energy Inc.)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 As of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of date hereof, the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate Borrower and its Subsidiaries have valid leasehold interests in (or, in the case of certain Propertiesleasehold interests in real or personal property) and good and legal title to (in the case of fee interests in real property and all other personal property) all of the material assets reflected in the consolidated balance sheet of the Borrower and its Subsidiaries as of January 31, 2010, or acquired since that date (except property or assets sold or otherwise disposed of in the leasehold estate) ordinary course of such Propertybusiness), in each case free and clear of all subject to no Liens except for Permitted Encumbrances and other Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Propertypermitted hereby.
(b) Except Each Loan Party and each of its Subsidiaries owns, or is licensed to use, all trademarks, trade names, copyrights, patents and other intellectual property reasonably necessary for matters that would notthe operation of their respective businesses, and the use thereof by such Loan Party or Subsidiary does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, would not reasonably be expected to have result in a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(c) Schedule 5.05(c) hereto sets forth all real property owned or leased by any Loan Party or any of its Subsidiaries.
(d) Except for matters that would notSchedule 5.05(d) hereto sets forth, individually as of March 31, 2010, a reasonably detailed description of all Inventory held by the Borrower and its Subsidiaries on consignment from trade vendors securing obligations to return or in pay the aggregatepurchase price of such Inventory, reasonably be expected and all Inventory otherwise subject to have a Contributor Material Adverse Effect, (i) any Lien securing Indebtedness not created under the Loan Documents or pursuant to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectExisting Revolving Credit Facility.
(e) Except for matters that would not, individually The Guam Subsidiary has no assets or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)operations.
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (Zale Corp), Credit Agreement (Z Investment Holdings, LLC)
Properties. (a) The Properties are All major items of operating equipment owned directly, in fee simple, or leased by the Persons set forth on Section 4.10 Parent or any of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate Parent Subsidiaries (ori) are, in the case of certain Properties, the leasehold estate) of such Propertyaggregate, in each case free a state of repair so as to be adequate in all material respects for reasonably prudent operations in the areas in which they are operated and clear (ii) are adequate, together with all other properties of Parent and the Parent Subsidiaries, to comply in all material respects with the requirements of all Liens except for Permitted Liens and Liensapplicable contracts, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Propertyincluding sales contracts.
(b) Except for goods and other property sold, used or otherwise disposed of since December 31, 2009 in the ordinary course of business, Parent and the Parent Subsidiaries have good and defensible title to all oil and gas leases and other properties forming the basis for the reserves reflected in the Parent Reserve Report as attributable to interests owned by Parent and the Parent Subsidiaries, and to all other properties, interests in properties and assets, real and personal, reflected in the Parent SEC Reports filed prior to the date of this Agreement as owned by Parent and the Parent Subsidiaries, free and clear of any Liens, except: (i) Liens associated with obligations reflected in the Parent Reserve Report or the Parent SEC Reports filed prior to the date of this Agreement, (ii) Liens for current taxes not yet due and payable, and (iii) such imperfections of title, easements, Liens, government or tribal approvals or other matters that and failures of title as would not, individually or in the aggregate, reasonably be expected to have a Contributor Parent Material Adverse Effect, .
(c) (i) no Contributor SubsidiaryThe leases and other agreements pursuant to which Parent or any of the Parent Subsidiaries leases or otherwise acquires or obtains operating rights affecting any real or personal property given material value in the Parent Reserve Report are in good standing, JV Entityvalid and effective, (ii) neither Parent nor any Parent Subsidiary is in breach or default under any such lease or other agreement nor, to the knowledge of Parent, is any other party to any such lease or other agreement affecting any Property to which the Contributor, a Contributor Subsidiary in breach or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liensthereunder, and (iii) all agreements affecting the rentals due by Parent or any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Parent Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale any lessor of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures such oil and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulationgas leases have been properly paid, except for such violations that in each case as would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Parent Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Arena Resources Inc), Merger Agreement (Sandridge Energy Inc)
Properties. Except as, individually or in the aggregate, has not had or would not reasonably be expected to have a Parent Material Adverse Effect: (ai) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 Parent and each of the Contributor Disclosure Letter Parent Subsidiaries has good, valid and marketable title to the real property owned by Parent or their direct or indirect wholly owned subsidiaries. Each Contributor any Parent Subsidiary or JV Entity listed as owning a Property on Section 4.10 that is material to the operation of the Contributor Disclosure Letter business of Parent or any Parent Subsidiary (the “Parent Owned Real Property”) and a valid leasehold or sublease interest in the real property that is insured under a policy of title insurance as material to the owner operation of the fee simple estate business of Parent or any Parent Subsidiary (or, in the case of certain Properties, the leasehold estate) of such “Parent Leased Real Property”), in each case case, free and clear of all Liens except for Permitted Liens and Liens, if any(ii) each lease, given to secure mortgage indebtedness encumbering such Property. Prior sublease, license, use or occupancy or similar agreements for Parent Leased Real Property (a “Parent Real Property Lease”) is valid, in full force and effect and enforceable against Parent or any Parent Subsidiary that is party thereto, (iii) Parent and the Parent Subsidiaries are not in default (and there is no event or condition that after notice or lapse of time or both would constitute a default by Parent or any Parent Subsidiary) under any Parent Real Property Lease and, to the effective Knowledge of Parent, there is no default (or event or condition that after notice or lapse of time or both would constitute a default) by any other party thereto under any Parent Real Property Lease, (iv) no Person leases, subleases, licenses or otherwise has a right to use or occupy any of the transactions contemplated Parent Real Property other than Parent or any Parent Subsidiary and (v) all improvements located on the Parent Real Property are in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit sufficiently good condition and repair (ordinary wear and tear excepted) to take any action allow the business of Parent and Parent Subsidiaries to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or be operated in the aggregate, reasonably ordinary course as currently operated and as presently proposed to be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, operated. Neither Parent nor any other Parent Subsidiary is a party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Parent Real Property.
(c) As presently conducted. No other real property, none of other than the Parent Real Property, is material to the operation of the buildings, fixtures and other improvements comprising a part business by Parent as conducted as of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectdate hereof.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pinnacle Foods Inc.), Agreement and Plan of Merger (Hillshire Brands Co)
Properties. (a) The Properties are owned directly, in fee simple, by Schedule 5.9(a) to the Persons set forth on Section 4.10 of the Contributor FelCor Disclosure Letter sets forth a complete and accurate list and the address of all real property owned or their direct leased by FelCor or indirect wholly owned subsidiaries. Each Contributor any FelCor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of (collectively, and together with the Contributor land at each address referenced in Schedule 5.9(a) to the FelCor Disclosure Letter is insured and all buildings, structures and other improvements and fixtures located on or under a policy of title insurance such land and all easements, rights and other appurtenances to such land, the "FelCor Properties"). FelCor or the FelCor Subsidiaries, owns or own, as the owner of the case may be, good and insurable fee simple estate title (or, if so indicated in Schedule 5.9
(a) to the case FelCor Disclosure Letter, leasehold title) to each of certain the FelCor Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any PropertyEncumbrances, except for Permitted Liens such mortgages as are set forth on Schedule 5.14(b) to the FelCor Disclosure Letter or for which no disclosure is required by Section 5.14(b), the Lien of real estate taxes not yet due and Lienspayable and such Encumbrances as individually, if anyand in the aggregate, given could not reasonably be expected to secure mortgage indebtedness encumbering have a FelCor Material Adverse Effect. Except for such Propertyof the following as individually, or in the aggregate, could not reasonably be expected to have a FelCor Material Adverse Effect, policies of title insurance (or marked title insurance commitments having the same force and effect as title insurance policies) have been issued by national title insurance companies insuring the fee simple or leasehold, as applicable, title of FelCor or its Subsidiaries, as applicable, to each of the FelCor Properties in amounts at least equal to the portion of the purchase price thereof allocated to real estate (the "FelCor Title Policies"), and, to FelCor's Knowledge, the FelCor Title Policies are valid and in full force and effect and no claim has been made under any such policy (except claims which have previously been fully resolved).
(b) Except as set forth in Schedule 5.9(b) to the FelCor Disclosure Letter, and except for matters that which would not, individually or in the aggregate, reasonably be expected to have a Contributor FelCor Material Adverse Effect or to materially and adversely affect the use or occupancy (or, if applicable, any proposed development) of the FelCor Properties, FelCor has no Knowledge that any currently required certificate, permit or license (including building permits and certificates of occupancy) from any Governmental Entity having jurisdiction over any FelCor Property or any agreement, easement or other right which is necessary to permit the lawful use, occupancy or operation of the existing buildings, structures or other improvements which constitute a part of any of the FelCor Properties has not been obtained or is not in full force and effect, or of any pending modification or cancellation of any of the same.
(c) Schedule 5.9(c) to the FelCor Disclosure Letter sets forth a complete and accurate list of all definitive agreements made or entered into by FelCor or any FelCor Subsidiary as of the date hereof, which are scheduled to close or be consummated after the date hereof, (x) to sell, mortgage, pledge, hypothecate, lease or sublease any FelCor Property, which, individually or in the aggregate, are material, (y) to enter into a material transaction in respect of the ownership or financing of any FelCor Property, or (z) to purchase, lease or otherwise acquire any real property.
(d) Except as set forth in Schedule 5.9(d) to the FelCor Disclosure Letter, none of the FelCor Properties is subject to any outstanding purchase option, right of first refusal, right of first offer or similar right other than such rights as would not reasonably be expected to have a FelCor Material Adverse Effect, (i) no Contributor Subsidiarynor has FelCor or any FelCor Subsidiary entered into any outstanding contracts with others for the sale, JV Entitymortgage, nor any other party to any agreement affecting any Property to which the Contributorpledge, a Contributor Subsidiary hypothecation, assignment, sublease or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration lease of any material obligation portion of any party thereto FelCor Property or the creation other transfer of a Lien upon all or any asset part of any Contributor Subsidiary FelCor Property as of the date hereof, which are scheduled to close or JV Entity, except for Permitted Liensbe consummated after the date hereof, and no Person has any right or option to acquire, or right of first refusal or right of first offer with respect to, any interest of FelCor or any FelCor Subsidiary in any FelCor Property or any material part thereof.
(iiie) all agreements affecting Schedule 5.9(e) to the FelCor Disclosure Letter sets forth the capital expenditure budget and schedule of FelCor and each FelCor Subsidiary for each FelCor Property, describing the capital expenditures which FelCor or any FelCor Subsidiary has budgeted for such FelCor Property required for the continued useperiod running through December 31, occupancy2001 (the "FelCor Budget and Schedule").
(f) The ground leases underlying the leased FelCor Properties (collectively, management, leasing and operation of such Property (exclusive of space leasesthe "FelCor Ground Leases") are valid and listed on Schedule 5.9(f) to the FelCor Disclosure Letter. Each of the FelCor Ground Leases is valid, binding and in full force and effect. No Contributor effect as against FelCor or any FelCor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant and, to FelCor's Knowledge, as against the other party thereto, except to the leases with respect extent the failure to the sale of be binding and in full force and effect would not reasonably be expected to have a FelCor Material Adverse Effect. There does not exist under any Property.
(c) As presently conducted, none of the operation FelCor Ground Leases any default, and, to FelCor's Knowledge, no event has occurred which, with notice or lapse of the buildingstime or both, fixtures and other improvements comprising would constitute such a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulationdefault, except for such violations that as would not, individually or in the aggregate, reasonably be expected to have result in a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor FelCor Material Adverse Effect.
(dg) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (iSchedule 5.9(g) to the Contributor’s KnowledgeFelCor Disclosure Letter sets forth a list of the hotel franchise, neither license or other agreements relating to the Contributornames, any Contributor Subsidiary nor any JV Entitymarks or systems (the "FelCor Franchise Agreements") under which each of the FelCor Properties is being operated. Each of the FelCor Franchise Agreements is in full force and effect and, to the Knowledge of FelCor, there are no defaults thereunder by either party thereto, nor have any other party to any Leaseevents occurred which, has given with the giving of notice or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, would constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration event of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entitiesdefault thereunder, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to those which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, either individually or in the aggregate, reasonably be expected to have aggregate would not constitute a Contributor FelCor Material Adverse Effect, .
(h) Schedule 5.9(h) to the FelCor Disclosure Letter sets forth a list of the hotel management agreements (the "FelCor Management Agreements") pursuant to which each of the Leases to which FelCor Properties is being managed. Each of the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, FelCor Management Agreements is in full force and effecteffect and, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s KnowledgeKnowledge of FelCor, each other there are no defaults thereunder by either party thereto, enforceable against each Contributor Subsidiary nor have any events occurred which, with the giving notice or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles passage of equity (regardless time or both would constitute a default or event of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedingsdefault thereunder, except for matters that would not, those which either individually or in the aggregate, reasonably be expected to have aggregate would not constitute a Contributor FelCor Material Adverse Effect.
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Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 As of the Contributor Disclosure Letter Third Amendment Effective Date, Schedule 3.05(a) sets forth the address of each Material Real Estate Asset (or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) each set of such Property, in assets that collectively comprise one operating property) that is owned or leased by each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such PropertyLoan Party.
(b) Except Each of the Loan Parties and each of their Subsidiaries has good and valid fee simple title to or rights to purchase, or valid leasehold interests in, or easements or other limited property interests in, all its Real Estate Assets (including any Mortgaged Properties) and has good and marketable title to its personal property and assets, in each case, except (i) for matters defects in title that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes or (ii) where the failure to have such title would not reasonably be expected to have a Material Adverse Effect. All such properties and assets are free and clear of Liens, other than Permitted Liens.
(c) Each of the Loan Parties and each of their Subsidiaries own or otherwise have a license or right to use all rights in patents, trademarks, service marks, trade names, domain names, copyrights and other rights in works of authorship (including all copyrights embodied in software) and all other similar intellectual property rights (“IP Rights”) used in the conduct of the businesses of the Loan Parties and their Subsidiaries as presently conducted without any infringement or misappropriation of the IP Rights of third parties, except to the extent such failure to own or license or have rights to use would not, or where such infringement or misappropriation would not, have, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. No third party has interfered with, (i) no Contributor Subsidiaryinfringed upon, JV Entitymisappropriated, nor or otherwise come into conflict with any other party to any agreement affecting any Property to which of the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition IP Rights of any such agreement, including, without limitation, Loan Party or any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entitytheir Subsidiaries, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance extent such infringement or other law or regulation, except for such violations that misappropriation would notnot have, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither No claim or litigation regarding any of the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority IP Rights is pending or, to the knowledge of any pending Loan Party, threatened in writing, except to the extent such claim or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that litigation would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would notnot have, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to . A correct and complete list of all IP Rights registered with the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time United States Patent and Trademark Office or the giving of noticeUnited States Copyright Office or any relevant office or agency in any applicable foreign jurisdiction, or bothas applicable, wouldand domain names registered with third-party domain name registrars, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause owned by the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset Loan Parties and their Subsidiaries as of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity Third Amendment Effective Date is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equityset forth on Schedule 3.05(c).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Properties. (a) The Properties are owned directly, in fee simple, by the Persons Except as set forth in Schedule 2.11 attached hereto, CLASSIC has good and marketable title to all properties and assets reflected on Section 4.10 the CLASSIC Balance Sheet and Schedule, reflecting the property inventory and depreciation list (except properties and assets sold or otherwise disposed of In the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of Ordinary Course after the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) date of such PropertyCLASSIC Balance Sheet), in each case free and clear of all Liens, except (i) such Liens except as are disclosed in Schedule 2.11, (ii) Liens for Permitted taxes not yet due and payable, (iii) Liens of landlords, vendors, warehousemen and Liensmechanics and (iv) such imperfections of title, easements and encumbrances, if any, given to secure mortgage indebtedness encumbering such Property. Prior to as are not material in character, amount or expense or do not materially detract from the effective time value or interfere with the present use of the transactions contemplated property subject thereto or affected thereby. To the best of XXXXX'x knowledge, all properties of CLASSIC (whether owned, leased or contracted for management) are in this Contribution Agreementcompliance with all applicable laws, statutes, rules and regulations (including, without limitation, building, zoning and environmental laws) and all covenants, conditions, restrictions or easements affecting the property or its use or occupancy, and no Contributor Subsidiary or JV Entity shall take or omit to take notices of any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Propertyviolations thereof have been received.
(b) Except as set forth in Schedule 2.11, each of the leases or contracts for matters that would notmanagement of property (collectively, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i"Leases") no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to under which the Contributor, a Contributor Subsidiary or JV Entity material properties of CLASSIC are leased (the "Leased Property") is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding unmodified and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
effect (c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregateform made available to CEC and attached and scheduled in Section 2.14 hereof), and, there are no other agreements, written or oral, between CLASSIC and any third parties claiming an interest in CLASSIC's interest in the Leased Property or otherwise affecting its management, use and occupancy thereof. Except as set forth m Schedule 2.11, is not in default under the Leases, and no defaults (whether or not subsequently cured) by CLASSIC have been alleged thereunder which, in either case, could be reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor Each lessor named in any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is not in full force and effectdefault thereunder, and constitutes the legal, valid and binding obligation of the Contributor no defaults (whether or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)not subsequently cured) by such lessor have been alleged thereunder.
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Properties. (a) The Properties are owned directlyEach Borrower and Guarantor has good and marketable title to, in fee simplevalid leasehold interests in, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (orvalid licenses to use, in the case of certain Propertiesall property and assets material to its business, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if anyexcept Permitted Liens. All such properties and assets are, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated and will be maintained, in this Contribution Agreementgood working order and condition, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens ordinary wear and Liens, if any, given to secure mortgage indebtedness encumbering such Propertytear excepted.
(b) Except for matters that would notSchedule 5.15 sets forth a complete and accurate list, individually as of the Effective Date of the location, by State and street address, of all Real Property owned or leased by Parent and any Subsidiary of Parent. As of the Effective Date, each Borrower and Guarantor has valid leasehold interests in the aggregateLeases described on Schedule 5.15 to which such Borrower and Guarantor is a party. Each such Lease is in full force and effect and is valid and enforceable against each Borrower and Guarantor that is a party thereto and, reasonably be expected to have the knowledge of such Borrower and Guarantor, all other parties thereto in accordance with its terms in all material respects, except as to those Leases identified in Schedule 5.15 where the consent to the assignment of such Lease as 80 part of the applicable Acquisition is required under the terms of such Lease and such consent has not been obtained, provided, that, no such Lease is material to the business of Borrowers taken as a Contributor Material Adverse Effectwhole. No consent or approval of any landlord or other third party in connection with any such Lease is necessary for any Borrower or Guarantor to enter into and execute the Loan Documents or the Acquisition Documents to which it is a party except as set forth on Schedule 5.15. To the knowledge of any Borrower or Guarantor, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting such Lease is in default in any Property material respect of its obligations thereunder, (ii) no Borrower or Guarantor (or any party to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as any such term is hereinafter definedLease) for space within such Property), has given at any time delivered or received any notice of default with respect to any term or condition of which remains uncured (beyond applicable notice and cure periods) under any such agreementLease and (iii) as of the Effective Date (after giving effect to the Acquisitions), including, without limitation, any ground lease, (ii) no event has occurred which, with the giving of notice or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, would constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV EntityLease, except for Permitted Liens, and (iii) all agreements affecting any Property required for as to those Leases identified in Schedule 5.15 where the continued use, occupancy, management, leasing and operation consent to the assignment of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a Lease as part of the Properties applicable Acquisition is in violation required under the terms of any applicable building codesuch Lease and such consent has not been obtained, zoning ordinance or other law or regulationprovided, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledgethat, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently material to the subject business of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have Borrowers taken as a Contributor Material Adverse Effectwhole.
Appears in 1 contract
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 4.19(a) of the Contributor DLR Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning sets forth a Property on Section 4.10 list of the Contributor Disclosure Letter is insured under a policy address of title insurance each DLR Property (and noting whether such real property is) owned, leased (as the owner lessee or sublessee) (including ground leased) or licensed (as licensee) by DLR or any DLR Subsidiary as of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Propertydate hereof.
(b) Except for matters that DLR or a DLR Subsidiary has good and marketable freehold or fee simple title or valid leasehold title or license (as applicable) to each of the DLR Properties, as of the date hereof, in each case, free and clear of Liens other than DLR Permitted Liens, except as would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Contributor DLR Material Adverse Effect. For the purposes of this Agreement, “DLR Permitted Liens” means (i) no Contributor Subsidiary, JV Entity, nor Liens securing any other party to Indebtedness of DLR or a DLR Subsidiary set forth on Section 4.19(b)(i) of the DLR Disclosure Letter or disclosed in the DLR SEC Documents or incurred by DLR or any agreement affecting any Property to which the Contributor, a Contributor DLR Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default in compliance with respect to any term or condition of any such agreement, including, without limitation, any ground leasethis Agreement, (ii) no event has occurred Liens that result from any statute or has been threatened in writing, which with other Liens for Taxes or without the passage of time assessments that are not delinquent or the giving validity of noticewhich is being contested in good faith by appropriate proceedings and for which there are adequate reserves on the DLR Financial Statements (if such reserves are required pursuant to GAAP), (iii) Liens arising under any DLR Material Contracts or other service contracts, management agreements, leasing commission agreements, or bothother agreements or obligations set forth in Section 4.19(b)(iii) of the DLR Disclosure Letter or disclosed in the DLR SEC Documents, would(iv) any DLR Leases or any ground leases or air rights agreements affecting any DLR Property, individually (v) zoning, entitlement, building and other land use regulations imposed by Governmental Entities having jurisdiction over any DLR Property which do not materially and adversely impair the current use of the underlying asset, (vi) Liens that are disclosed on the existing title insurance policies of DLR or together would be disclosed on an accurate survey, and, with all such respect to leasehold interests, Liens on the underlying fee or leasehold interest of the applicable ground lessor, lessor or sublessor, (vii) any cashiers’, landlords’, workers’, mechanics’, carriers’, workmen’s, repairmen’s and materialmen’s Liens and other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause similar Liens imposed by Law and incurred in the acceleration ordinary course of any material obligation of any party thereto business that are not yet delinquent or the creation validity of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except which is being contested in good faith by appropriate proceedings and for Permitted Lienswhich there are adequate reserves on the DLR Financial Statements (if such reserves are required pursuant to GAAP), and (iiiviii) all agreements affecting any other non-monetary Liens, limitations, restrictions or title defects that do not materially impair the value of the applicable DLR Property required for or the continued use, occupancy, management, leasing use and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, DLR Property as currently used and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)operated.
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Properties. (a) The Properties are All Real Property owned directlyor leased by any Credit Party as of the Initial Borrowing Date, and the nature of the interest therein, is correctly set forth in fee simpleSchedule 8.12 (excluding Real Property which is part of the Retail Business). Each Credit Party has good and indefeasible title to all material properties (and to all buildings, fixtures and improvements located thereon) owned by it, including all material property reflected in the most recent historical balance sheets referred to in Section 8.05(a) (except as sold or otherwise disposed of since the date of such balance sheet in the ordinary course of business or as permitted by the Persons set forth on Section 4.10 terms of this Agreement and except to the extent such property is part of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiariesRetail Business), free and clear of all Liens, other than Permitted Liens. Each Contributor Subsidiary or JV Entity listed as owning Credit Party has a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, valid and indefensible leasehold interest in the case of certain Properties, material properties which comprise the leasehold estate) of such Property, in each case Acquired Refinery Business and which leased by it free and clear of all Liens except for other than Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) All pipelines, pipeline easements, utility lines, utility easements and other easements, servitudes and rights-of-way burdening or benefiting the Refinery will not, as of the Effective Date, materially interfere with or prevent any operations conducted at the Refinery by any Credit Party in the manner operated on the date of this Agreement, except for any Permitted Liens. Except for Permitted Liens, with respect to any pipeline, utility, access or other easements, servitudes, and licenses located on or directly serving the Refinery and owned or used by any Credit Party in connection with its operations at the Refinery, to each Credit Party’s knowledge, such agreements are in full force and effect other than agreements that, individually or in the aggregate are not material to any Credit Party, and no defaults exist thereunder and no events or conditions exist which, with or without notice or lapse of time or both, would constitute a default thereunder or result in a termination, except for such failures, defaults, terminations and other matters that would notthat, individually or in the aggregate, could not reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 3.11(a) of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed Schedule sets forth, as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under date of this Agreement, (i) a policy list of title insurance all material real properties (by name and location) owned by Seller or Tribune, as applicable, or any of their respective Subsidiaries primarily for use in the owner Business (the “Owned Real Property”) and (ii) a list of the fee simple estate (ormaterial leases, subleases or other occupancies to which Seller or Tribune, as applicable, or any of their respective Subsidiaries is a party as tenant for real property primarily for use in the case of certain Properties, Business (the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property“Real Property Leases”).
(b) Except for matters that as would notnot reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, with respect to each Owned Real Property, (i) Seller or Tribune, as applicable, or one of their respective Subsidiaries has good and marketable title to such Owned Real Property, free and clear of all Liens (other than Permitted Liens), (ii) there are no (A) unexpired options to purchase agreements, rights of first refusal or first offer or any other rights to purchase or otherwise acquire such Owned Real Property or any portion thereof or a direct or indirect interest therein or (B) other outstanding rights or agreements to enter into any contract for sale, ground lease or letter of intent to sell or ground lease such Owned Real Property, which, in each case, is in favor of any party other than Seller or Tribune, as applicable, or one of their respective Subsidiaries, (iii) policies of title insurance have been issued insuring, as of the effective date of each such insurance policy, fee simple title interest held by Seller or Tribune, as applicable, or one of their respective Subsidiaries, and (iv) there are no existing pending or, to the Knowledge of Seller, threatened condemnation, eminent domain or similar proceedings affecting such Owned Real Property.
(c) Except as would not reasonably be expected to have have, individually or in the aggregate, a Contributor Material Adverse Effect, Seller or Tribune, as applicable, or one of their respective Subsidiaries (i) no Contributor Subsidiaryhas valid leasehold title to each real property subject to a Real Property Lease, JV Entitysufficient to allow Seller or Tribune, nor any other party as applicable, or one of their respective Subsidiaries to any agreement affecting any Property to which conduct the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (Business as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground leasecurrently conducted, (ii) no event has occurred or has been threatened in writingeach Real Property Lease is valid, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant , subject to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted LiensEnforceability Exceptions, and (iii) each none of Seller, Tribune or any of their respective Subsidiaries or, to the leases (and all amendments thereto or modifications thereof) to which the ContributorKnowledge of Seller, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party theretoto such Real Property Lease has violated any provision of, enforceable against each Contributor Subsidiary or JV Entitytaken or failed to take any act which, and to with or without notice, lapse of time, or both, would constitute a default under the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles provisions of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)such Real Property Lease.
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Samples: Asset Purchase Agreement
Properties. (ai) The Properties are owned directlyEach Property Owner (a true, in fee simple, by the Persons correct and complete list of which is set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the Schedule 3.1(s)(i)) has (A) good and marketable fee simple estate (ortitle to the Real Property owned by such Property Owner, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for other than the Permitted Liens applicable to it, and Liens(B) good and marketable leasehold title to the Real Property leased by such Property Owner, if anyfree and clear of all Liens other than the Permitted Liens applicable to it.
(ii) Except as set forth on Schedule 3.1(s)(ii), given as the date hereof, neither the Company nor any Property Owner has knowledge of, nor has it received any notice of, any non-recurring or special taxes or assessments or any planned public improvements that may result in a non-recurring or special tax or assessment with respect to secure mortgage indebtedness encumbering the Company, its Subsidiaries, its Investment Entities or the Properties.
(iii) The Company, its Subsidiaries or its Investment Entities has (A) good title to all of the Personal Property owned by such Person, free and clear of all Liens other than Permitted Liens applicable to it and (B) a valid leasehold interest to all Personal Property leased by such Person, free and clear of all Liens other than Permitted Liens applicable to it. Each parcel of Real Property which is a hotel contains all levels of Personal Property and inventories of supplies necessary to operate such hotel in the ordinary course of business, consistent with past practice.
(iv) The lessee under each Ground Lease and under each Space Lease (where the Company, or any of its Subsidiaries or its Investment Entities is lessee) is in peaceful and quiet possession of the Property demised thereunder.
(v) As of the date hereof, neither the Company, nor any of its Subsidiaries or any of its Investment Entities has knowledge of any change or proposed change in the route, grade or width of, or otherwise affecting, any street, creek or road adjacent to or serving any parcel of Real Property. Prior Within the period of eighteen (18) months prior to the effective time date hereof, no portion of any of the transactions contemplated Properties has suffered any material damage or had its operation curtailed in this Contribution Agreementany material respect by fire, no Contributor Subsidiary flood or JV Entity shall take other casualty which has not heretofore been repaired and restored to its original or omit better condition and paid or provided for, all in accordance with all applicable Governmental Regulations.
(vi) All utilities required for the operation of each parcel of Real Property either enter such Real Property through adjoining streets, or they pass through adjoining land, do so in accordance with valid public easements or irrevocable private easements, and all of said utilities are installed and operating.
(vii) Except as set forth on Schedule 3.1(s)(vii), the present zoning (including, by means of special variances of record) of each parcel of Real Property permits the current use thereof (excluding isolated instances of non-compliance which are immaterial in nature). Neither the Company, its Subsidiaries, nor, to take the knowledge of the Company, any of the Investment Entities, has knowledge of any fact, proceeding or threatened action to cause or proceeding which could materially adversely affect the present zoning of any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such parcel of Real Property.
(bviii) Except for matters that would not, individually or in There are no (A) unrecorded easements which are not shown on the aggregate, reasonably be expected to have a Contributor Material Adverse EffectSurveys, (iB) no Contributor Subsidiary, JV Entity, nor any other party strips or gores with respect to any agreement or affecting any parcel of Real Property (or portion thereof) which cause any related parcels of Land to which be non-contiguous or (C) encroachments either by the Contributor, a Contributor Subsidiary Improvements on any property owned by others or JV Entity is a party by any improvement owned by others on any parcel of the Real Property (other than encroachments which are immaterial in nature). Each parcel of Real Property has a Lease (as right to access to and from such term is hereinafter defined) for space within such Property), has given or received any notice parcel of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Real Property.
(cix) As presently conductedSchedule 3.1(s)(ix) contains (A) a true, none correct and complete list of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse EffectTitle Insurance Policies, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, effect and constitutes (B) a list of all Title Reports previously delivered to the legal, valid and binding obligation of the Contributor Purchaser or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)Purchaser covering those Real Properties not insured by Title Insurance Policies.
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Samples: Stock Purchase Agreement (Westbrook Real Estate Partners LLC)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 As of the Contributor Disclosure Letter date of the First Amendment Effective Date, Schedule 3.05 sets forth the address of each parcel of real property that is owned by or their direct or indirect wholly owned subsidiariesleased to any Loan Party. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free leases and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity subleases is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding enforceable in accordance with its terms and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor no default by any party to any such lease or the sublease exists (after giving effect to any applicable Contributor Subsidiary notice requirement or JV Entity, and grace period) except to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under extent any such Lease is presently the subject failure of such leases to be in full force and effect, or any voluntary or involuntary bankruptcy or insolvency proceedingsdefault, except for matters that would notcould not reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Effect. Each of the Loan Parties and each of its Subsidiaries has good and indefeasible title to, or valid leasehold interests in, all of its real and personal property, free of all Liens other than those permitted by Section 6.02. To the Loan Parties’ knowledge, no holding, injunction, decision or judgment has been rendered by any Governmental Authority and none of the Loan Parties or any of their respective Subsidiaries has entered into any settlement stipulation or other agreement (except license agreements in the ordinary course of business) which would cancel the validity of the Loan Parties’ or any of their Subsidiaries’ rights in any Intellectual Property owned by the Company or any of its Subsidiaries (the “Borrower Intellectual Property”) in any respect that would reasonably be expected to have a Contributor Material Adverse Effect. To the Loan Parties’ knowledge, no pending claim has been asserted or threatened in writing by any Person challenging the use by the Company or any of its Subsidiaries of any Borrower Intellectual Property or the validity of any Borrower Intellectual Property, except in each case as would not reasonably be expected to have a Material Adverse Effect. To the Loan Parties’ knowledge, the use of any Borrower Intellectual Property by the Company or its Subsidiaries does not infringe on the rights of any other Person in a manner that would reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries have taken all commercially reasonable actions that in the exercise of their reasonable business judgment should be taken to protect the Borrower Intellectual Property, including Borrower Intellectual Property that is confidential in nature, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
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Properties. (a) The Properties are Each of the Borrower and its ---------- Subsidiaries and Eligible Minority Holdings own good and marketable fee simple absolute title to all of the Real Property purported to be owned directlyby them, which Real Property is at the date hereof described in fee simpleSchedule 3.05(a), and good and marketable title to, or valid leasehold interests in, all other properties and assets purported to be leased by the Persons set forth on Section 4.10 Borrower or any of its Subsidiaries or Eligible Minority Holdings. Each of the Contributor Disclosure Letter Borrower and its Subsidiaries or their direct Eligible Minority Holdings received all deeds, assignments, waivers, consents, non-disturbance and recognition or indirect wholly owned subsidiaries. Each Contributor Subsidiary similar agreements, bills of sale and other documents, and have duly effected all recordings, filings and other actions necessary to establish, protect and perfect Borrower's and its Subsidiaries' or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of Eligible Minority Holdings' right, title insurance as the owner of the fee simple estate (or, and interest in the case of certain Properties, the leasehold estate) of and to all such Property, in each case free and clear of all Liens property except for Permitted Liens and Liens, if any, given such documents or actions the failure to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary obtain or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Propertyaccomplish which would not have a Material Adverse Effect.
(b) Except All material Real Property leased at the date hereof by the Borrower or any of its Subsidiaries or Eligible Minority Holdings is listed on Schedule 3.05(b). Each of such leases is valid and enforceable in accordance with its terms and is in full force and effect. The Borrower has delivered to the Administrative Agent true and complete copies of each of such leases and all documents affecting the rights or obligations of the Borrower or any of its Subsidiaries or Eligible Minority Holdings which is a party thereto, including, without limitation, any non-disturbance and recognition agreements, subordination agreements, attornment agreements and agreements regarding the term or rental of any of the leases. None of the Borrower or any of its respective Subsidiaries or Eligible Minority Holdings nor, to the knowledge of the Borrower, any other party to any such lease is in default of its obligations thereunder or has delivered or received any notice of default under any such lease, nor has any event occurred which, with the giving of notice, the passage of time or both, would constitute a default under any such lease, except for matters that would notdefaults which in the aggregate have no Material Adverse Effect.
(c) All components of all improvements included within the Projects owned or leased, individually as lessee, by the Borrower or any of its Subsidiaries or Eligible Minority Holding (collectively, "Improvements"), including, without limitation, the roofs and structural elements thereof and the heating, ventilation, air conditioning, plumbing, electrical, mechanical, sewer, waste water, storm water, paving and parking equipment, systems and facilities included therein, are in good working order and repair, subject to such exceptions which are not reasonably likely to have, in the aggregate, a Material Adverse Effect. All water, gas, electrical, steam, compressed air, telecommunication, sanitary and storm sewage lines and systems and other similar systems serving the Projects owned or leased by the Borrower or any of its Subsidiaries or are installed and operating and are sufficient to enable the Real Property owned or leased by the Borrower and its respective Subsidiaries or Eligible Minority Holdings to continue to be used and operated in the manner currently being used and operated, and neither Borrower nor any of its Subsidiaries or Eligible Minority Holdings has any knowledge of any factor or condition that reasonably could be expected to result in the termination or material impairment of the furnishing thereof. No Improvement or portion thereof is dependent for its access, operation or utility on any land, building or other Improvement not included in the Real Property owned or leased by the Borrower or any of its Subsidiaries or Eligible Minority Holdings other than for access provided pursuant to a recorded easement or other right of way establishing the right of such access.
(d) All Permits required to have been issued or appropriate to enable all Real Property owned or leased by the Borrower or any of its Subsidiaries or Eligible Minority Holdings to be lawfully occupied and used for all of the purposes for which they are currently occupied and used have been lawfully issued and are in full force and effect, other than those which in the aggregate have no Material Adverse Effect.
(e) Neither Borrower nor any of its Subsidiaries or Eligible Minority Holdings has received any notice, or has any knowledge, of any pending, threatened or contemplated condemnation proceeding affecting any Real Property owned or leased by the Borrower or any of its Subsidiaries or Eligible Minority Holdings or any part thereof, or any proposed termination or impairment of any parking at any such owned or leased Real Property or of any sale or other disposition of any Real Property owned or leased by the Borrower or any of its Subsidiaries or Eligible Minority Holdings or any part thereof in lieu of condemnation, which in the aggregate, are reasonably likely to have a Contributor Material Adverse Effect.
(f) Except for events or conditions not reasonably likely to have, in the aggregate, a Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition portion of any Real Property owned or leased by the Borrower or any of its Subsidiaries or Eligible Minority Holdings has suffered any material damage by fire or other casualty loss which has not heretofore been completely repaired and restored to its condition prior to such agreementcasualty, including, without limitation, any ground lease, and (ii) no event has occurred portion of any Real Property owned or has been threatened leased by the Borrower or any of its Subsidiaries or Eligible Minority Holdings is located in writing, which with or without a special flood hazard area as designated by any Federal Governmental Authorities.
(g) Each of the passage of time or the giving of noticeBorrower and its Subsidiaries and Eligible Minority Holdings owns, or bothis licensed to use, wouldall trademarks, individually or together with all such tradenames, copyrights, patents and other eventsintellectual property material to its business, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause and the acceleration use thereof by the Borrower and its Subsidiaries and Eligible Minority Holdings and does not infringe upon the rights of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entityother Person, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would notinfringements that, individually or in the aggregate, could not reasonably be expected to have result in a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Properties. (a) The Properties are owned directly, in fee simple, by the Persons Except as set forth on in Section 4.10 4.18(a) of the Contributor Disclosure Letter Schedule, no Seller or their direct Company has received, within the preceding two-year period, any written notice of any adverse claim (that has not been resolved) to the title to any asset within the Midstream Assets or indirect wholly owned subsidiariesthe Assigned Assets or with respect to any lease under which any asset included within the Midstream Assets or the Assigned Assets is held, and to the Knowledge of Sellers, there are no existing facts or circumstances that could give rise to such claim. There is no pending taking (whether permanent, temporary, whole or partial) of any part of the Midstream Assets or the Assigned Assets by reason of condemnation or, to the Knowledge of Sellers, the threat of condemnation.
(b) Section 4.18(b) of the Disclosure Schedule sets forth a list of each parcel of real property in which any Company has a fee ownership interest (including any real property that is part of the Assigned Assets, but excluding the Easements) (collectively, the “Real Property Interests”). Each Contributor Subsidiary or JV Entity listed as owning a Company owns and has defensible title to the Real Property on Interests free and clear of all Liens other than Permitted Liens and Liens identified in Section 4.10 4.18(b) of the Contributor Disclosure Letter Schedule. To Sellers’ Knowledge, each Company has defensible title to all the material personal property that is insured under a policy of title insurance as used in connection with the owner conduct of the fee simple estate business of the Companies (orexcept for the Excluded Assets), in including all material portions of both the case Midstream Assets and, as of certain Propertiesthe Closing Date, the leasehold estate) of such PropertyAssigned Assets, in each case free and clear of all Liens except for other than Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time Liens identified in Section 4.18(b) of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such PropertyDisclosure Schedule.
(bc) Except for matters that would notas specified in Section 4.18(c) of the Disclosure Schedule, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, Sellers’ Knowledge and except for Permitted Liens, (i) each Easement is valid, existing and enforceable, (ii) there is not any event that is reasonably expected to result in the termination, impairment or limitation of any Easement, (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale no future payments of any Property.
kind are due under any Easement in order to maintain its existence, and (civ) As presently conductedthe continuation, none validity and enforceability of each Easement will not be disturbed or affected by the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effecttransactions contemplated by this Agreement.
(d) Except for matters as set forth in Section 4.18(d) of the Disclosure Schedule, there are no preferential rights to purchase, rights of first offer, rights of first refusal or similar rights that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party are applicable to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset portion of the Contributor, the Contributor’s Subsidiaries Midstream Assets or the JV Entities, except for Permitted Liens, and Assigned Assets (iii) each including any that arise as a result of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or transactions contemplated by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equitythis Agreement).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Samples: Partnership Interest Purchase and Sale Agreement (Crosstex Energy Lp)
Properties. (ai) The Properties are owned directly, in fee simple, by Neither the Persons set forth on Section 4.10 Company nor any of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiariesits Subsidiaries owns any real property. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except Except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior any exceptions to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would following as could not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, Effect on the Company: (i) no Contributor Subsidiaryeach of the Company and its Subsidiaries has valid leasehold interests in the real property leased (as landlord or as tenant) by or from it (the “Leased Real Property”), JV Entity, nor any free and clear of all Liens other party to any agreement affecting any Property than Permitted Liens (as defined in Section 8.11(e)); (ii) all leases pursuant to which the Contributor, a Contributor Subsidiary Company or JV Entity is a party (other than a Lease any of its Subsidiaries leases (as such term is hereinafter definedlandlord or as tenant) for space within such Property), has given any Leased Real Property are in full force and effect and grant in all respects the leasehold estates or rights of occupancy or use they purport to grant; and (iii) the Company and its Subsidiaries have not received any notice of any default with respect to either on the part of the Company or any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default its Subsidiaries under any such agreementlease and, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none knowledge of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s KnowledgeCompany, no event has occurred or has been threatened in writingwhich, which with or without the passage of time notice or the giving lapse of noticetime, or both, would, individually or together with all such other events, would constitute a default on the part of the Company or any of its Subsidiaries under any Leaseof such leases.
(ii) The Company and each Subsidiary owns or leases all tangible and intangible personal Property required to conduct its business in the ordinary and usual course of its business consistent with past practices. The Company and each Subsidiary has good and valid title to, or woulda valid leasehold interest in, individually or together with all such other eventstangible and intangible personal property used by it, reasonably be expected to cause the acceleration free and clear of all encumbrances of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for nature whatsoever other than (A) Permitted Liens, (B) liens arising under Securitization Transaction Documents and (iiiC) liens arising under other financing documents of the Company or any Subsidiary, each of which documents is listed in Section 3.1(u) of the Company Disclosure Schedule and a true and correct copy of each of which (including all schedules listing the assets subject thereto) has been provided to Parent, and a true and correct copy of each amendment to any such document or such schedules, or of any document or schedules thereto required to be added to such list in the Company Disclosure Schedule, in each case after the date hereof, will be provided to Parent. All such tangible personal property is in sufficient operating condition to continue the operations of the Company and each Subsidiary in the ordinary and usual course of its business consistent with past practices. Upon consummation of the Merger, the Company and its Subsidiaries will be entitled to continue to use all tangible personal property employed by any of them in the conduct of their respective businesses as conducted as of the Effective Date without the payment of any amounts by the Company or Parent and without obtaining any consent or waiver that is either required or advisable. All leases (and all amendments thereto or modifications thereof) to of tangible personal property of which the Contributor, any Contributor Subsidiary Company or any JV Entity Subsidiary is a party the lessee or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and obligor are in full force and effect.
effect according to their terms and there are no outstanding defaults by the Company or any Subsidiary thereunder (e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each nor are any of the Leases to which other parties thereto in breach or default). Neither the Contributor, Company nor any Contributor Subsidiary or any JV Entity is a party or by which obligated upon the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject occurrence of any voluntary condition or involuntary bankruptcy event to deposit or insolvency proceedingspledge any collateral to any Person pursuant to any agreement, except for matters that would not, individually contract or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectcommitment.
Appears in 1 contract
Samples: Merger Agreement (HPSC Inc)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 Each of the Contributor Disclosure Letter Borrower and its Subsidiaries has good title to, or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (orvalid leasehold interests in, in the case of certain Properties, the leasehold estate) of such Property, in each case free all its real and clear of all Liens except for Permitted Liens and Liens, if any, given personal property material to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Propertyits business, except for Permitted Liens and Liens, if any, given minor defects in title that do not materially interfere with its ability to secure mortgage indebtedness encumbering conduct its business as currently conducted or to utilize such Propertyproperties for their intended purposes.
(b) Except Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for matters that would notany such infringements that, individually or in the aggregate, could not reasonably be expected to have result in a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation Effective Date, each Subsidiary of the buildingsBorrower, fixtures including its ownership, is described on Schedule 3.05 hereto, and other improvements comprising each Subsidiary that is a part Material Insurance Subsidiary or a Material Subsidiary is designated as such on Schedule 3.05 hereto. Each Subsidiary of the Properties is Borrower has and will have all requisite power to own or lease the properties material to its business and to carry on its business as now being conducted and as proposed to be conducted. All outstanding shares of Equity Interests of each class of each Subsidiary of the Borrower have been and will be validly issued and are and will be fully paid and nonassessable and, except as otherwise indicated in violation Schedule 3.05 hereto or disclosed in writing to the Administrative Agent and the Lenders from time to time, are and will be owned, beneficially and of record, by the Borrower or another Subsidiary of the Borrower, free and clear of any applicable building codeLiens other than Liens permitted under this Agreement.
(d) As of the Effective Date, zoning ordinance there are no restrictions on the Borrower or any of its Subsidiaries which prohibit or otherwise restrict the transfer of cash or other assets from any Subsidiary of the Borrower to the Borrower, other than (i) prohibitions or restrictions existing under or by reason of this Agreement or the other Loan Documents, (ii) prohibitions or restrictions existing under or by reason of applicable requirements of law and (iii) other prohibitions or regulationrestrictions which, except for such violations that would not, either individually or in the aggregate, have not had, or could not reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would nothave, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 Each of the Contributor Disclosure Letter Borrower and its Subsidiaries has good title to, or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate valid leasehold interests in, all its real and personal property material to its business (orincluding its Mortgaged Properties), in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens Encumbrances and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Propertyas permitted under Section 6.02, except for Permitted Liens and Liens, if any, given where the failure to secure mortgage indebtedness encumbering have such Property.
(b) Except for matters that title or other property interests described above would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(cb) As presently conducted, none Each of the operation of the buildingsBorrower and its Subsidiaries owns, fixtures or is licensed to use, all trademarks, tradenames, copyrights, patents and other improvements comprising a part Intellectual Property used or held for use in its business, and the use thereof by the Borrower and its Subsidiaries and the conduct of its and their businesses does not and has not infringed upon the Properties is in violation rights of any applicable building code, zoning ordinance or other law or regulationPerson, except to the extent any such failure to own or license, and for any such violations that would notinfringements that, individually or in the aggregate, could not reasonably be expected to have result in a Contributor Material Adverse Effect. Neither No claim or litigation regarding any of the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority foregoing is pending or, to the knowledge of any pending or Borrower, threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that which would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Borrower and its Subsidiaries have taken all necessary and otherwise commercially reasonable measures to protect the confidentiality of all trade secrets included in the Collateral. No material trade secrets have been disclosed by Borrower or its Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use thereof. To the knowledge of Borrower, no current or former employee, contractor or consultant of Borrower or its Subsidiaries has any right, title or interest in or to any Intellectual Property that is included in the Collateral. To the knowledge of Borrower, all Persons (including any current or former employees, contractors or consultants) who have developed, created, conceived or reduced to practice any material Intellectual Property in the Collateral for Borrower or any of its Subsidiaries have assigned all right, title and interest in and to all such Intellectual Property to Borrower or one of its Subsidiaries pursuant to a valid and enforceable written contract or by operation of law.
(dc) Except for matters Schedule 3.05 sets forth the address of each real property that would notis owned, individually leased, subleased, licensed or in otherwise used or occupied pursuant to a binding agreement by the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) Borrower or any of its Subsidiaries as of the Closing Date after giving effect to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectTransactions.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Properties. (ai) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 3.1(t)(i) of the Contributor NEON Disclosure Letter Schedule sets forth a complete and accurate list of all real property that either NEON or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on any of its Subsidiaries owns.
(ii) Section 4.10 3.1(t)(ii) of the Contributor NEON Disclosure Letter is insured under Schedule sets forth a policy complete and accurate list all real property leased, subleased or licensed by NEON or any of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Propertyits Subsidiaries, except for Permitted Liens easements, rights of way and Liensregeneration facilities and, if anywith respect to licensed real property, given any such agreements with respect to secure mortgage indebtedness encumbering such Property.
(bA) Collocation Sites and (B) central office sites under tariff (the "LEASED REAL PROPERTY"). Except as set forth in Section 3.1(t)(ii) of the NEON Disclosure Schedule and except for matters that would any exceptions to the following as could not, individually or in the aggregate, reasonably be expected to have a Contributor NEON Material Adverse Effect, : (i) no Contributor Subsidiaryeach of NEON and its Subsidiaries has valid leasehold interests in the Leased Real Property (as landlord or as tenant) by or from it, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (free and clear of all Liens other than a Lease Permitted Liens (as such term is hereinafter defined) for space within such Propertydefined in Section 9.11), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, ; (ii) no event has occurred all leases pursuant to which NEON or has been threatened any of its Subsidiaries leases (as landlord or as tenant) any Leased Real Property are in writing, which with full force and effect and grant in all respects the leasehold estates or without the passage rights of time occupancy or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected use they purport to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, grant; and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing NEON and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to its Subsidiaries have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has not received any written notice from a Governmental Authority of any pending default either on the part of NEON or threatened proceedings for the rezoning any of its Subsidiaries under any Property or portion thereof except for such notices or proceedings that would notlease and, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice Knowledge of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s KnowledgeNEON, no event has occurred or has been threatened in writingwhich, which with or without the passage of time notice or the giving lapse of noticetime, or both, would, individually or together with all such other events, would constitute a default on the part of NEON or any of its Subsidiaries under any Lease, or would, individually or together with all of such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectleases.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Globix Corp)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 3.8(a) of the Contributor Parent Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed Schedule contains a complete and correct list, as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner date hereof, of the fee simple estate (orParent Leased Real Property, in including with respect to each such Parent Lease the case of certain Properties, the leasehold estate) date of such Property, in Parent Lease and any material amendments thereto. With respect to each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any PropertyParent Lease, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that as would not, individually or in the aggregate, have a Parent Material Adverse Effect:
(i) the Parent Leases and the Parent Ancillary Lease Documents are valid and in full force and effect except to the extent they have previously expired or terminated in accordance with their terms. Parent and its Subsidiaries have delivered to Parent full, complete and accurate copies of each of the Parent Leases and all Parent Ancillary Lease Documents described in Section 3.8(a) of the Parent Disclosure Schedule;
(ii) none of the Parent Leased Real Property is subject to any Encumbrance other than a Permitted Encumbrance;
(iii) none of Parent or its Subsidiaries, nor, to the Knowledge of Parent, any other party to any Parent Lease or Parent Ancillary Lease Document is in breach or default, and, to the Knowledge of Parent, no event has occurred which, with notice or lapse of time, would constitute such a breach or default under the Parent Leases or any Parent Ancillary Lease Documents;
(iv) none of Parent or its Subsidiaries has assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any of its rights and interest in the leasehold or subleasehold under any of the Parent Leases or any Parent Ancillary Lease Documents in a manner that is material to Parent and that relates to the use or occupancy of all or any portion of the Parent Leased Real Property.
(b) Except as would not reasonably be expected to have have, individually or in the aggregate, a Contributor Parent Material Adverse Effect, (i) no Contributor SubsidiaryParent and its Subsidiaries own good title, JV Entityfree and clear of all Encumbrances, nor any to all personal property and other party non-real estate assets, in all cases excluding the Parent Intellectual Property, necessary to any agreement affecting any Property to which conduct the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV EntityParent Business, except for Permitted LiensEncumbrances, and (iiiii) all agreements affecting any Property required for Parent and its Subsidiaries, as lessees, have the continued right under valid and subsisting leases to use, occupancypossess and control all personal property leased by Parent and its Subsidiaries as now used, managementpossessed and controlled by Parent or its Subsidiaries, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Propertyas applicable.
(c) As presently conducted, none None of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of Parent or its Subsidiaries has any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse EffectParent Owned Real Property.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Imperial Subsidiary or JV Entity (or direct or indirectly wholly owned subsidiary of such JV Entity) listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Imperial Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Seller Material Adverse Effect, (i) no Contributor Imperial Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the ContributorImperial, a Contributor an Imperial Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of Imperial, any Contributor Imperial Subsidiary or any JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Imperial Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Seller Material Adverse Effect. Neither the Contributor Imperial nor any Contributor Imperial Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning (i.e., as opposed to the current zoning) of any Property or portion thereof except for such notices which would substantially and materially impair the current or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectproposed use thereof.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Seller Material Adverse Effect, (i) to the Contributorsuch Stockholder’s Knowledgeknowledge, neither the Contributor, Imperial nor any Contributor Imperial Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributorsuch Stockholder’s Knowledgeknowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the ContributorImperial, the Contributor’s Subsidiaries any Imperial Subsidiary or the any JV EntitiesEntity, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the ContributorImperial, any Contributor Imperial Subsidiary or any JV Entity is a party or by which Imperial, any Contributor, Contributor Imperial Subsidiary or any JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Seller Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Imperial Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Imperial Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Imperial Subsidiary or JV Entity, and to the Contributorsuch Stockholder’s Knowledgeknowledge, each other party thereto, enforceable against each Contributor Imperial Subsidiary or JV Entity, and to the Contributorsuch Stockholder’s Knowledgeknowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributorsuch Stockholder’s Knowledge, except as previously disclosed to the Companyknowledge, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Seller Material Adverse Effect.
Appears in 1 contract
Properties. (a) The Properties A description of all fixed assets which are material to UNB and its subsidiaries considered as a whole owned directlyby each of UNB and UNB Bank (directly or through the UNB Subsidiaries) has been delivered to BancFirst (hereinafter referred to as the "UNB Personal Property"). All UNB Personal Property has been maintained in good working order, in fee simpleordinary wear and tear excepted. UNB, by UNB Bank or a UNB Subsidiary owns and has good title to all of the Persons UNB Personal Property, free and clear of any mortgage, Lien, pledge, charge, claim, conditional sales or other agreement, lease, right or encumbrance, except:
(i) As set forth on in Section 4.10 5.11(a) of the Contributor UNB Disclosure Letter Schedule;
(ii) To the extent stated or their direct reserved against in the UNB Audited Financials or indirect wholly owned subsidiaries. Each Contributor Subsidiary the UNB Interim Financials; and
(iii) Such other exceptions which are not material in character or JV Entity listed as owning a Property on Section 4.10 amount and do not materially detract from the value of or interfere with the use of the Contributor properties or assets subject thereto or affected thereby.
(b) A description of each parcel of real property owned by UNB, UNB Bank, or a UNB Subsidiary (other than real property taken by UNB Bank in consideration of debts previously contracted) is set forth in Section 5.11(b) of the UNB Disclosure Letter Schedule (hereinafter referred to individually as a "UNB Parcel" and collectively as the "UNB Real Properties"). Either UNB, UNB Bank or a UNB Subsidiary is insured under a policy of title insurance as the owner of the each UNB Parcel in 35 38 fee simple and has good and marketable title to each such UNB Parcel, free of any Liens, claims, charges, encumbrances or security interests of any kind, except:
(i) As set forth in Section 5.11(b) of the UNB Disclosure Schedule;
(ii) Liens for real estate taxes and assessments not yet delinquent; and
(oriii) Utility, access and other easements, rights of way, restrictions and exceptions, none of which impair the UNB Real Properties for the use and business being conducted thereon.
(c) A description of all real property leased by UNB, UNB Bank or any UNB Subsidiary is set forth in Section 5.11(c) of the UNB Disclosure Schedule (hereinafter referred to as the "UNB Leased Real Property"). Except as set forth in Section 5.11(c) of the UNB Disclosure Schedule, the Real Property Leases create, in accordance with their terms, valid, binding and assignable leasehold interests of either UNB or UNB Bank, or a UNB Subsidiary, in all of the case of certain Properties, the leasehold estate) of such UNB Leased Real Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if anyclaims, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreementcharges, no Contributor Subsidiary encumbrances or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition security interests of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectkind.
(d) Except for matters that would notA description of all personal property leased by UNB, individually UNB Bank or a UNB Subsidiary which requires payment of rentals in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (iexcess of $50,000 per annum is set forth in Section 5.11(d) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectUNB Disclosure Schedule.
(e) Except for matters that would not, individually The documentation (hereinafter referred to as "UNB Loan Documentation") governing or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and relating to the Contributor’s Knowledge, each other party thereto, loan and credit-related assets (hereinafter referred to as the "UNB Loan Assets") included within the loan portfolio of UNB Bank is legally sufficient in all material respects for the purposes intended thereby and creates enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, rights in favor of UNB Bank in accordance with its termsthe terms of such UNB Loan Documentation, subject to applicable bankruptcy, insolvency, reorganizationreorganization and moratorium laws and other laws of general applicability affecting the enforcement of creditors' rights generally, moratorium and similar Laws affecting creditors’ rights generally the effect of rules of law governing specific performance, injunctive relief and subject, as to enforceability, to general principles other equitable remedies on the enforceability of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or documents. Each loan included in the aggregate, reasonably be expected to have a Contributor Material Adverse EffectUNB Loan Assets has been serviced in all material respects in accordance with customary lending standards in the ordinary course of business.
Appears in 1 contract
Samples: Merger Agreement (Unb Corp/Oh)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Forum Subsidiary or JV Entity (or direct or indirectly wholly owned subsidiary of such JV Entity) listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Forum Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Seller Material Adverse Effect, (i) no Contributor Forum Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the ContributorForum, a Contributor Forum Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of Forum, any Contributor Forum Subsidiary or any JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Forum Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Seller Material Adverse Effect. Neither the Contributor Forum nor any Contributor Forum Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning (i.e., as opposed to the current zoning) of any Property or portion thereof except for such notices which would substantially and materially impair the current or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectproposed use thereof.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Seller Material Adverse Effect, (i) to the ContributorStockholder’s Knowledgeknowledge, neither the Contributor, Forum nor any Contributor Forum Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the ContributorStockholder’s Knowledgeknowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the ContributorForum, the Contributor’s Subsidiaries any Forum Subsidiary or the any JV EntitiesEntity, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the ContributorForum, any Contributor Forum Subsidiary or any JV Entity is a party or by which Forum, any Contributor, Contributor Forum Subsidiary or any JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Seller Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Forum Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Forum Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Forum Subsidiary or JV Entity, and to the ContributorStockholder’s Knowledgeknowledge, each other party thereto, enforceable against each Contributor Forum Subsidiary or JV Entity, and to the ContributorStockholder’s Knowledgeknowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the ContributorStockholder’s Knowledge, except as previously disclosed to the Companyknowledge, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Seller Material Adverse Effect.
Appears in 1 contract
Properties. (a) The Properties are owned directly, Seller has provided to Buyer a true and complete list of all real property leased by Seller or its Subsidiaries pursuant to leases providing for the occupancy of facilities in fee simple, by excess of 10,000 square feet (collectively "Material Lease(s)") and the Persons set forth on Section 4.10 location of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiariespremises. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of With respect to each such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.Material Lease:
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiarythe lease is legal, JV Entityvalid, nor any other party binding, enforceable against Seller subject to any agreement affecting any Property to which the ContributorBankruptcy and Equity Exception, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant ; (ii) the lease will continue to be legal, valid, binding, enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect prior to the leases with respect Closing; (iii) neither Seller nor, to the sale of Seller's knowledge, any Property.
(c) As presently conducted, none of other party to the operation of the buildings, fixtures and other improvements comprising a part of the Properties lease or sublease is in violation breach or default, and no event has occurred which, with notice or lapse of time, would constitute a breach or default or permit termination, modification or acceleration thereunder; and (iv) Seller has not assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or interest in the aggregateleasehold or subleasehold; except, in the case of clauses (i) through (iv) that the same is not reasonably be expected likely to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Seller Material Adverse Effect.
(b) Seller has provided to Buyer a true and complete list of all real property that Seller or any of its Subsidiaries owns (the "Owned Real Property"). With respect to each such parcel of Owned Real Property (a) Seller or the identified Subsidiary has good and clear record and marketable title to such property, insurable by a recognized - 13 - national title insurance company at standard rates, free and clear of any security interest, easement, covenant or other restriction, except for recorded easements, covenants and other restrictions which do not materially impair the current uses or occupancy of such property; (b) there are no (i) condemnation proceedings pending or, to Seller's knowledge, threatened relating to such parcel or (ii) litigation or administrative actions pending or, to Seller's knowledge, threatened relating to such parcel; (c) the legal description for such parcel contained in the deed thereof describes such parcel fully and adequately; the buildings and improvements located thereon are located within the boundary lines of the described parcels of land, are not in violation of current setback requirements, zoning laws and ordinances and do not encroach on any easement which may burden the land; the land does not serve any adjoining property for any purpose inconsistent with the use of the land as heretofore used; and such parcel is not subject to any restriction for which any permits or licenses necessary to the use thereof as heretofore used have not been obtained; (d) Except for matters that would notthere are no leases, individually subleases or in agreements granting to any party or parties the aggregateright of use or occupancy of any portion of such parcel; and (e) to Seller's knowledge, reasonably be expected to have a Contributor Material Adverse Effect, each parcel is an independent unit which does not rely on any facilities (other than the facilities of public utility and water companies) located on any other property (i) to the Contributor’s Knowledgefulfill any zoning, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any building code or other party to any Lease, has given municipal or received any notice of default with respect to any term or condition of any such Lease, governmental requirement; (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time for structural support or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration furnishing of any material obligation of any party thereto essential building systems or the creation of a Lien upon any asset of the Contributorutilities, the Contributor’s Subsidiaries including but not limited to electric, plumbing, mechanical, heating, ventilating and air conditioning systems; or the JV Entities, except for Permitted Liens, and (iii) each to fulfill the requirements of any lease. To Seller's knowledge, no building or other improvement not included in the parcel relies on any part of the leases (and all amendments thereto parcel to fulfill any zoning, building code or modifications thereof) to which the Contributor, any Contributor Subsidiary other municipal or any JV Entity is a party governmental requirement or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor structural support or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject furnishing of any voluntary essential building systems or involuntary bankruptcy utilities. Such parcel is assessed by local property assessors as a tax parcel or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectparcels separate from all other tax parcels.
Appears in 1 contract
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 As of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 date of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Propertiesthis Agreement, the leasehold estatePerfection Certificate sets forth the address of each parcel of real property (or each set of parcels that collectively comprise one operating property) of such Property, in that is owned or leased by each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such PropertyLoan Party.
(b) Except Each of the Borrower and each of the Subsidiaries has good fee simple title to, or valid leasehold interests in, or easements or other limited property interests in, all its Real Estate Assets (including any Mortgaged Properties) and has good and marketable title to its personal property and assets, in each case, except for matters defects in title that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes and except where the failure to have such title would notnot reasonably be expected to have a Material Adverse Effect. All such properties and assets are free and clear of Liens, other than (i) Permitted Liens, (ii) Liens arising by operation of law and (iii) minor defects in title that do not materially interfere with the ability of Holdings and its Subsidiaries to conduct their businesses.
(c) As of the Closing Date, no Responsible Officer of Holdings, the Borrower or any Subsidiary has received any written notice of, nor has any knowledge of, any pending or contemplated condemnation proceeding affecting any of the Mortgaged Properties or any sale or disposition thereof in lieu of condemnation.
(d) To the knowledge of each Responsible Officer of the Borrower, as of the Closing Date, none of the Borrower or any Subsidiary is obligated under any right of first refusal, option or other contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein.
(e) To the knowledge of each Responsible Officer of the Borrower, each of the Borrower and each of the Subsidiaries has complied with all obligations under all leases to which it is a party, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect, and all such leases are in full force and effect, except leases in respect of which the failure to be in full force and effect would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(f) Each of the Borrower and the Subsidiaries owns or possesses, or is licensed to use, all patents, trademarks, service marks, trade names and copyrights and all licenses and rights with respect to the foregoing, necessary for the present conduct of its business, without any conflict with the rights of others, and free from any burdensome restrictions on the present conduct of its business, except where such failure to own, possess or hold pursuant to a license or such conflicts and restrictions would not reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would nothave, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Properties. (a) The Zastron Properties are owned directlyrepresent all of the real property anywhere owned, in fee simple, used or occupied by the Persons set forth on Section 4.10 Zastron Group or in respect of which the Zastron Group has any estate, interest, right or liability, and in respect of each of the Contributor Disclosure Letter or their direct or indirect wholly Zastron Properties owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of by the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.Zastron Group:-
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor SubsidiaryZastron or the relevant Zastron Subsidiary is at the date hereof the registered and beneficial owner of and has a good and marketable title to the Zastron Property(ies) free from all adverse claims, JV Entityencumbrances, nor any other liens and third party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, rights whatsoever;
(ii) no event contracts have been entered into by any member of the Zastron Group to sell, assign, subdivide, let, licence, charge, mortgage, partition, share, grant any option over or otherwise dispose of an interest in or part with the possession or occupation of any of the Properties or any part thereof or otherwise encumber the Zastron Properties nor is there any agreement by any member of the Zastron Group to do any of the aforesaid;
(iii) Zastron or the relevant Zastron Subsidiary is in physical possession and actual occupation of the whole of the Zastron Property(ies) on an exclusive basis and no right of occupation or enjoyment has occurred been acquired or is in the course of being acquired by any third party or has been threatened granted or agreed to be granted to any third party;
(iv) all of the title deeds and documents necessary to prove title to the Zastron Properties are in writingthe possession or under the control of the Zastron Group and the documents of title consist of original documents or, where appropriate, properly certified copies thereof and original executed tenancy agreements in respect of the tenancies, all of which have been stamped with the full amount of the stamp duty (if applicable) payable thereon;
(v) no right, easement, licence or informal arrangement, public or private, is enjoyed or in the course of being acquired by or against any of the Zastron Properties or any part thereof;
(vi) the rates and all other outgoings in respect of the Zastron Properties have been duly paid to the date hereof;
(vii) all necessary certificates of compliance, occupation permits and other consents and authorities for the present use of the Zastron Properties have been issued and are in force and there are no circumstances known or which would on reasonable enquiry be known to the Vendor, any member of the Zastron Group or any director of any of the foregoing which may result in the forfeiture, avoidance, withdrawal, restriction or non-renewal of or amendment to the same;
(viii) there are no outstanding notices, complaints or requirements issued by any governmental body, authority or department in respect of any of the Zastron Properties;
(ix) there is no circumstance which (with or without the passage taking of time any other action) would entitle any third party to exercise a right or power of entry to or to take possession of or which would in any other way affect or restrict the continued possession, enjoyment or present use by Zastron or the giving relevant Zastron Subsidiary of notice, the Zastron Properties or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause part thereof;
(x) the acceleration Vendor is unaware of any material obligation planning or other proposals or restrictions made or intended to be made by any governmental body, authority or department concerning the compulsory acquisition or resumption of any party thereto of the Zastron Properties or any part thereof or which would adversely affect any of the Zastron Properties or any part thereof or the creation value of such Zastron Properties;
(xi) none of the Zastron Properties is subject to any restrictions on its being assigned, mortgaged, charged, let or otherwise disposed of;
(xii) if applicable, Zastron or the relevant Zastron Subsidiary has a Lien upon any asset good and valid policy of insurance in respect of the Zastron Property(ies) with coverage in its reinstatement value and the premiums in respect of such policy are fully paid up to date;
(xiii) to the best of the knowledge and belief of the Vendor, no action, claim, demand or liability (contingent or otherwise) in respect of any Contributor Subsidiary of the Zastron Properties or JV Entityany part thereof is outstanding;
(xiv) there have been no unauthorised structures erected upon or unauthorised alterations made to any of the Zastron Properties or any part thereof;
(xv) there are no outstanding or anticipated complaints, except for Permitted Liensproposals, and (iii) all agreements schemes, resolutions, notices, orders, requirements or recommendations of any district or other authority affecting any Property required for of the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary Zastron Properties or JV Entity has granted an option any part thereof or right of first refusal the use thereof or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conductedowner or occupier thereof, none of the operation Zastron Properties comprises a listed building, no part of any of the buildings, fixtures Zastron Properties is included in a conservation area and other improvements comprising a part there are no pending applications in respect of any of the Zastron Properties;
(xvi) there are no outstanding or anticipated monetary claims or liabilities contingent or otherwise in respect of any of the Zastron Properties or any part thereof including compensation for disturbance or improvements in respect of any past or present tenancy;
(xvii) so far as the Vendor is aware, none of the Zastron Properties which are situated in the PRC has been contaminated with any hazardous substance which may constitute an impediment to the use or intended use of any of such Zastron Properties, and no pollution of the environment in violation of any applicable building codepollution or environmental protection laws or regulations of the PRC has occurred or is occurring in connection with such Properties;
(xviii) so far as the Vendor is aware, zoning ordinance or other law or regulation, except for such violations that would not, individually or in none of the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity Zastron Group has received any written notice complaint in relation to any material harm or pollution to the environment from a Governmental Authority any governmental or local authority; and in relation to the Zastron Tenancies :-
(a) the Zastron Tenancies are all good, valid and subsisting and have in no way become void or voidable;
(b) all covenants, obligations, conditions and restrictions imposed upon any member of any pending or threatened proceedings the Zastron Group under the Zastron Tenancies have been duly and promptly observed and performed;
(c) the agreements for the rezoning of Zastron Tenancies have all been properly stamped and (if necessary) any Property forms and documents required to be lodged in relation thereto with the government or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to other authorities have a Contributor Material Adverse Effect.been lodged on time;
(d) Except for matters that would notno Zastron Tenancies will be subject to avoidance, individually revocation or be otherwise affected solely upon or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset consequence of the Contributor, the Contributor’s Subsidiaries making or the JV Entities, except for Permitted Liens, and (iii) each implementation of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectthis Agreement.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Nam Tai Electronics Inc)
Properties. Except as set forth in Section 3.16 of the KeyTech Disclosure Letter:
(a) The Properties are owned directlyKeyTech or any of its Subsidiaries has (i) a good and valid title, leasehold or sublease interest or other comparable contract right in fee simple, by the Persons set forth on Section 4.10 real property (including licenses granted pursuant to Schedule 2 of the Contributor Disclosure Letter ICTA Law) that KeyTech or their direct any of its Subsidiaries (x) leases, subleases or indirect wholly owned subsidiaries. Each Contributor Subsidiary otherwise occupies without owning (each such real property, a “Leased Real Property” and each such lease, sublease or JV Entity listed as owning comparable right, a Property on Section 4.10 of the Contributor Disclosure Letter is insured under “Lease”) or (y) owns (each such real property, an “Owned Real Property”), and (ii) good, valid and marketable title to, or a policy of title insurance as the owner of the fee simple estate (orvalid leasehold, in the case of certain Propertiessublease interest or other comparable contract right in, the leasehold estate) other tangible assets and properties necessary to the conduct of such Propertyits business as currently conducted, in each case of clauses (i) and (ii), free and clear of all Liens Encumbrances except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such PropertyEncumbrances.
(b) Except for matters that would not, individually or KeyTech and its Subsidiaries are in compliance in all material respects with the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice terms of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted LiensLeases, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) Leases are valid and binding and in full force and effect. No Contributor Subsidiary KeyTech has not received any written notice that it is in default under any Lease or JV Entity has granted an option or right any notification of first refusal or offer pursuant disputes with any third party relating to any Lease, nor, to the leases Knowledge of KeyTech, is any other party to such Lease in default thereunder. No event has occurred, which, after the giving of notice, with respect lapse of time or both, would constitute a default by KeyTech under any Lease or, to the sale Knowledge of KeyTech, any Propertyother party under such Lease.
(c) As presently conducted, none There has been no material breach by KeyTech or any of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation its Subsidiaries of any applicable building codeLaw, zoning ordinance or other bye-law or regulation, except for such violations that would not, individually or Permit in connection with the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectproperties.
(d) Except for matters that would not, individually or No “development” as defined in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, Development and Xxxxxxxx Xxx 0000 of Bermuda (ithe “Planning Act”) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or carried out on the Owned Real Properties without the passage of time or the giving of noticeplanning permission first having been granted, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset otherwise in contravention of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary Planning Act or any JV Entity is a party or by which condition contained in any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectplanning permission granted for such development.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Samples: Transaction Agreement (Atlantic Tele Network Inc /De)
Properties. (ai) The Properties are All real property owned directlyor leased by CWBC or any of its Subsidiaries has been Previously Disclosed.
(ii) With respect to such real property that is owned by CWBC or any of its Subsidiaries, in fee simpleCWBC has good and marketable and insurable title, by the Persons free and clear of all Liens, leases or other imperfections of title or survey, except (i) Permitted Encumbrances, (ii) Liens set forth on Section 4.10 in policies for title insurance of such properties delivered to CVCY, and including the matters Previously Disclosed, (iii) survey imperfections set forth in surveys of such properties delivered to CVCY, or (iv) as Previously Disclosed.
(iii) With respect to such real property that is leased by CWBC or any of its Subsidiaries, CWBC has a good and marketable leasehold estate in and to such property, free and clear of all Liens, leases and other imperfections of title or survey, except for the Permitted Encumbrances. CWBC has delivered true, correct and complete copies of such lease(s), together with all amendments thereto, to CVCY; any such lease is in full force and effect and will not lapse or terminate prior to the Closing Date; neither CWBC nor any of its Subsidiaries nor the landlord thereunder is in default of any of their respective obligations under any such lease and any such lease constitutes the valid and enforceable obligations of the Contributor Disclosure Letter Parties thereto; the transactions contemplated hereby will not require the consent of any landlord under any such lease, or their direct such consent shall have been obtained prior to the Closing; and, with respect to any mortgage, deed of trust or indirect wholly owned subsidiaries. Each Contributor Subsidiary other security instrument which establishes a Lien on the fee interest in any real property subject to any such lease, CWBC or JV Entity listed as owning its Subsidiaries has the benefit of a Property on Section 4.10 non-disturbance agreement from the holder or beneficiary of such mortgage, deed of trust or other security instrument that provides that CWBC’s or its Subsidiaries’ use and enjoyment of the Contributor Disclosure Letter is insured under real property subject to such lease will not be disturbed as a policy of title insurance as the owner result of the fee simple estate landlord’s default under any such mortgage, deed of trust or other security instrument, provided CWBC and its BN 79011068v1 Subsidiaries are not in default of any of their obligations pursuant to any such lease beyond the expiration of any notice and cure periods.
(or, iv) All real and personal property owned by CWBC or any of its Subsidiaries or presently used by any of them is in good condition (ordinary wear and tear excepted) and is sufficient to carry on its business in the case ordinary course of certain Propertiesbusiness consistent with its past practices.
(v) CWBC and its Subsidiaries have good and marketable and insurable title, the leasehold estate) of such Property, in each case free and clear of all Liens to all of its material properties and assets, other than real property, except for Permitted Liens (A) pledges to secure deposits incurred in the ordinary course of its banking business consistent with past practice, (B) such imperfections of title and Liensencumbrances, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated as are not material in this Contribution Agreementcharacter, no Contributor Subsidiary amount or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liensextent, and (iiiC) all agreements affecting any Property required for the continued use, occupancy, management, leasing as Previously Disclosed. All personal property which is material to CWBC’s or its Subsidiaries’ business and operation of such Property (exclusive of space leases) leased or licensed by CWBC or its Subsidiaries is held pursuant to leases or licenses which are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium their respective terms and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law such leases will not terminate or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed lapse prior to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse EffectEffective Time.
Appears in 1 contract
Samples: Merger Agreement (Central Valley Community Bancorp)
Properties. (aA) The Properties are owned directly, in Operating Partnership or its subsidiaries have good and marketable title (fee simple, by the Persons set forth on Section 4.10 or leasehold) to all of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, real properties described in the case of certain PropertiesRegistration Statement, the leasehold estateGeneral Disclosure Package and the Prospectus as owned or leased by them and the improvements located thereon (individually, a “Property” and collectively, the “Properties”) of such Propertyand any other real property owned by them, in each case case, free and clear of all Liens mortgages, pledges, liens, claims, security interests, restrictions or encumbrances of any kind, except for such mortgages, pledges, liens, claims, security interests, restrictions or encumbrances as (1) are described in the Registration Statement, General Disclosure Package and the Prospectus, (2) are Permitted Liens Encumbrances or (3) would not, individually or in the aggregate, have a Material Adverse Effect; (B) all of the ground leases and Lienssubleases relating to the Properties, if any, given to secure mortgage indebtedness encumbering such Property. Prior material to the effective time business of the transactions contemplated Operating Partnership and its subsidiaries considered as one enterprise, are in this Contribution Agreementfull force and effect, no Contributor Subsidiary with such exceptions as are not material and do not materially interfere with the use made or JV Entity shall take proposed to be made of such Property by the Operating Partnership or omit any of its subsidiaries, and neither the Operating Partnership nor any of its subsidiaries has any notice of any material claim of any sort that has been asserted by anyone adverse to take the rights of the Operating Partnership or any action of its subsidiaries under any of the ground leases or subleases mentioned above, or affecting or questioning the rights of the Operating Partnership or any of its subsidiaries to cause the continued possession of the leased or subleased premises under any Lien such ground lease or sublease; (C) all liens, charges, encumbrances, claims or restrictions on or affecting any of the Properties and the assets of the Operating Partnership or any of its subsidiaries that are required to attach be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus are disclosed therein; (D) each of the Properties complies with all applicable codes, laws and regulations (including, without limitation, building and zoning codes, laws and regulations and laws relating to any Propertyaccess to the Properties), except for Permitted Liens and Liens, if any, given such failures to secure mortgage indebtedness encumbering such Property.
(b) Except for matters comply that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect; (E) neither the Operating Partnership nor the Possible Future Guarantors has any knowledge of any pending or threatened condemnation proceedings, zoning change or other proceeding or action that will in any material manner affect the size of, use of, improvements on, construction on or access to the Properties, except as would not, individually or in the aggregate, have a Material Adverse Effect; (F) the mortgages and deeds of trust that encumber the Properties are not convertible into equity securities of the entity owning such Property and said mortgages and deeds of trust are not cross-defaulted or cross-collateralized with any property other than other Properties; (G) the Operating Partnership, directly or indirectly, has obtained title insurance on the fee or leasehold interests, as the case may be, in each of the Properties, in an amount at least equal to the greater of (i) no Contributor Subsidiarythe mortgage indebtedness of each such Property or (ii) the purchase price of each such Property, JV Entityand all such policies of insurance are in full force and effect; and (H) except as otherwise described in the Registration Statement, the General Disclosure Package or the Prospectus, neither the Operating Partnership nor any other party of its subsidiaries nor, to the knowledge of the Operating Partnership, any tenant of any of the Properties, is in default under (x) any tenant lease (as lessor or lessee, as the case may be) relating to any agreement affecting of the Properties, (y) any Property to which of the Contributor, a Contributor Subsidiary mortgages or JV Entity is a party other security documents or other agreements encumbering or otherwise recorded against the Properties or (other than a Lease (as such term is hereinafter definedz) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred sublease or has been threatened in writingoperating sublease relating to any of the Properties, which whether with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, would constitute a default under any of such agreement, documents or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entityagreements, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of (x), (y) and (z) immediately above any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations default that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Samples: Underwriting Agreement (Brixmor Operating Partnership LP)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 Company and each of the Contributor Disclosure Letter Subsidiaries has good and marketable title to, or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (orvalid leasehold interest in, in the case of certain Propertiesall its properties and assets, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time except as set forth in Section 4.14(a) of the transactions contemplated Disclosure Schedule and for Liens that do not, individually or in this Contribution Agreementthe aggregate, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Propertyhave a Material Adverse Effect.
(b) Except Neither the Company nor any Subsidiary thereof owns a fee or other ownership interest in any real property. Section 4.14(b) of the Disclosure Schedule sets forth a true and complete list of each lease or material sublease relating to real property or interests in real property leased by the Company or any of the Subsidiaries (collectively, the “Company Material Leases”). The Company has delivered or made available to Parent true and correct copies of each Company Material Lease. No option has been exercised under any of the Company Material Leases, except options whose exercise has been evidenced by a written document, a true, complete and accurate copy of which has been delivered or made available to Parent with the corresponding Company Material Lease.
(c) Each Company Material Lease is in full force and effect and neither the Company, any of the Subsidiaries nor any other party to a Company Material Lease has given to the other party or parties written notice of or has made a written claim with respect to any breach or default thereunder. Neither the Company nor any of the Subsidiaries thereof is in default of any obligation under any Company Material Lease and no event has occurred which with the passage of time or giving of notice, or both would constitute a default of any obligation under any Company Material Lease by the Company or any of the Subsidiaries, except, in each case, for matters that any such default which would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. To the knowledge of the Company, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity Company Material Lease is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of in default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, material obligation thereunder and (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, both would constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation under any Company Material Lease by such other party. None of the property subject to any party thereto Company Material Lease is subject to any sublease, license or other agreement granting to any Person any right to the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation occupancy or enjoyment of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary property or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectportion thereof.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Strategic Distribution Inc)
Properties. (a) The Properties are owned directly, in fee simple, Neither the Seller nor any of its Subsidiaries owns any real property. Section 4.16(a) of the Seller Disclosure Schedule lists all real property leased or subleased to or by the Persons Seller or any of its Subsidiaries and lists the dates of and parties to each such lease, the dates and parties to each amendment, modification and supplement to each lease, any extension and expansion options, and the current rent payable thereunder as of the date hereof. The Seller has made available to the Seller true, complete and accurate copies of the leases and subleases (each as amended to date) listed in Section 4.16(a) of the Seller Disclosure Schedule. With respect to each such lease and sublease, except as set forth on in Section 4.10 4.16(a) of the Contributor Seller Disclosure Letter Schedule:
(i) the lease or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning sublease is a Property on Section 4.10 valid, binding and enforceable obligation of the Contributor Disclosure Letter is insured under a policy of title insurance Seller or its Subsidiary, as the owner case may be, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors' rights and general principles of equity;
(ii) neither the Seller nor any of its Subsidiaries, or to the knowledge of the fee simple estate (Seller, any other party, is in material breach or violation of, or material default under, any such lease or sublease, and no event has occurred, is pending or, to the knowledge of the Seller, is threatened, which, after the giving of notice or the lapse of time or both, would constitute a material breach or default by the Seller or any of its Subsidiaries, or to the knowledge of the Seller, any other party under such lease or sublease;
(iii) except for the subleases set forth in Section 4.16(a) of the Seller Disclosure Schedule, neither the Seller nor any of its Subsidiaries has assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered in any material respect any interest in the case of certain Propertiesleasehold or subleasehold; and
(iv) there are no Encumbrances, the leasehold estate) of such Propertyeasements, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior covenants or other restrictions applicable to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary real property subject to such lease or JV Entity shall take or omit to take any action to cause any Lien to attach to any Propertysublease, except for Permitted Liens recorded easements, covenants and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would other restrictions which do not, individually or in the aggregate, reasonably be expected materially impair the current uses or the occupancy by the Seller or its Subsidiary, as the case may be, of the property subject thereto.
(b) Except as set forth in Section 4.16(b) of the Seller Disclosure Schedule, the Seller and its Subsidiaries own good title, free and clear of all Encumbrances, to have a Contributor Material Adverse Effectall property and physical assets necessary to conduct the business of the Seller as currently conducted, except for (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which Encumbrances reflected in the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground leaseSeller Financial Statements and notes thereto included in the Seller SEC Reports, (ii) no event has occurred Encumbrances or has been threatened in writing, imperfections of title which do not materially detract from the value or interfere with the present or without presently contemplated use of the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party assets subject thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entityaffected thereby, except for Permitted Liens, and (iii) all agreements affecting any Property required Encumbrances for current Taxes not yet due and payable and (iv) Encumbrances on the continued landlord's interest in the premises. Except as would not be material to the business of the Seller, the Seller and its Subsidiaries, as lessees, have the right under valid and subsisting leases to use, occupancypossess and control all personalty leased by the Seller or its Subsidiaries as now used, managementpossessed and controlled by the Seller or its Subsidiaries, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effectas applicable. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none All of the operation of the buildingsmachinery, fixtures equipment and other improvements comprising a part of tangible personal property and assets owned or used by the Properties is in violation of any applicable building codeSeller and its Subsidiaries, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would notare in serviceable condition, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entitiesmaintenance and repair, except for Permitted Liens, ordinary wear and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effecttear.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Modem Media Inc)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 As of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 date of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Propertiesthis Agreement, the leasehold estatePerfection Certificate sets forth the address of each parcel of real property (or each set of parcels that collectively comprise one operating property) of such Property, in that is owned or leased by each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such PropertyLoan Party.
(b) Except Each of the Borrower and each of the Subsidiaries has good fee simple title to, or valid leasehold interests in, or easements or other limited property interests in, all its Real Estate Assets (including any Mortgaged Properties) and has good and marketable title to its personal property and assets, in each case, except for matters defects in title that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes and except where the failure to have such title would notnot reasonably be expected to have a Material Adverse Effect. All such properties and assets are free and clear of Liens, other than (i) Permitted Liens, (ii) Liens arising by operation of law and (iii) minor defects in title that do not materially interfere with the ability of Holdings and its Subsidiaries to conduct their businesses.
(c) As of the Closing Date, no Responsible Officer of Holdings, the Borrower or any Subsidiary has received any written notice of, nor has any knowledge of, any pending or contemplated condemnation proceeding affecting any of the Mortgaged Properties or any sale or disposition thereof in lieu of condemnation.
(d) To the knowledge of each Responsible Officer of the Borrower, as of the Closing Date, none of the Borrower or any Subsidiary is obligated under any right of first refusal, option or other contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein.
(e) To the knowledge of each Responsible Officer of the Borrower, each of the Borrower and each of the Subsidiaries has complied with all obligations under all leases to which it is a party, except where the failure to comply would not reasonably be expected to have, a Material Adverse Effect, and all such leases are in full force and effect, except leases in respect of which the failure to be in full force and effect would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(f) Each of the Borrower and the Subsidiaries owns or possesses, or is licensed to use, all patents, trademarks, service marks, trade names and copyrights and all licenses and rights with respect to the foregoing, necessary for the present conduct of its business, without any conflict with the rights of others, and free from any burdensome restrictions on the present conduct of its business, except where such failure to own, possess or hold pursuant to a license or such conflicts and restrictions would not reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would nothave, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Properties. (a) The Properties are owned directlySection 4.16(a) of the Company Disclosure Letter sets forth a list of the address of each real property owned, in fee simpleleased (as lessee or sublessee), including ground leased, by the Persons set forth on Section 4.10 Company or any Company Subsidiary as of the Contributor Disclosure Letter date of this Agreement (all such real property interests, together with all buildings, structures and other improvements and fixtures located on or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed under such real property and all easements, rights and other appurtenances to such real property, are individually referred to herein as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance “Company Property” and collectively referred to herein as the owner of the fee simple estate (or, in the case of certain “Company Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property”).
(b) Except The Company or a Company Subsidiary owns good and marketable fee simple title or leasehold title (as applicable) to each of the Company Properties, in each case, free and clear of Liens, except for matters Company Permitted Liens that have not had and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Contributor Company Material Adverse Effect. For the purposes of this Agreement, “Company Permitted Liens” shall mean any (i) no Contributor Subsidiary, JV Entity, nor any other party Liens relating to any agreement affecting any Property to which Indebtedness incurred in the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice ordinary course of default business consistent with respect to any term or condition of any such agreement, including, without limitation, any ground leasepast practice, (ii) no event has occurred Liens that result from any statutory or has been threatened in writing, which with other Liens for Taxes or without the passage of time assessments that are not yet subject to penalty or the giving validity of noticewhich is being contested in good faith by appropriate proceedings and for which there are adequate reserves on the financial statements of the Company (if such reserves are required pursuant to GAAP), (iii) any Company Material Contracts or other service contracts, management agreements, leasing commission agreements, agreements or obligations set forth in Section 4.16(l) of the Company Disclosure Letter, or bothCompany Leases or ground leases or air rights affecting any Company Property, would(iv) Liens imposed or promulgated by Law or any Governmental Authority, individually including zoning regulations, permits and licenses, (v) Liens that are disclosed on the existing Company Title Insurance Policies made available by or together on behalf of the Company or any Company Subsidiary to Parent prior to the date hereof and, with all such respect to leasehold interests, Liens on the underlying fee or leasehold interest of the applicable ground lessor, lessor or sublessor, (vi) any cashiers’, landlords’, workers’, mechanics’, carriers’, workmen’s, repairmen’s and materialmen’s liens and other events, constitute a default under any such agreement, or would, individually or together similar Liens imposed by Law and incurred in the ordinary course of business consistent with all such other events, reasonably be expected past practice that are not yet subject to cause the acceleration of any material obligation of any party thereto penalty or the creation validity of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Lienswhich is being contested in good faith by appropriate proceedings, and (iiivii) all agreements affecting any other Liens that do not materially impair the value of the applicable Company Property required for or the continued use, occupancy, management, leasing use and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, Company Property as currently used and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)operated.
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (American Realty Capital Global Trust II, Inc.)
Properties. (ai) The Properties are owned directlyCompany and its Subsidiaries have good and marketable title to, in fee simplevalid leasehold interests in, by the Persons set forth on Section 4.10 or valid licenses to use, all property and assets of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 Company and its Subsidiaries (including the property and assets of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (orCSD), in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, except as described on SCHEDULE 3(Q) or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and any of its Subsidiaries. All such properties and assets are in good working order and condition, ordinary wear and tear excepted. SCHEDULE 3(Q) sets forth a complete and accurate list of the location, by state and street address, of all real property owned, licensed or leased by the Company and its Subsidiaries and identifies the interest (fee, leasehold or license) of the Company or Subsidiary therein. The Company or its Subsidiaries has valid leasehold interests in the leases described on SCHEDULE 3(Q) to which it is a party. True, complete and correct copies of each such lease have been delivered to each of the Buyers (or its representatives). SCHEDULE 3(Q) sets forth with respect to each such lease, the commencement date, termination date, renewal options (if any, given to secure mortgage indebtedness encumbering ) and annual base rents. Each such Propertylease is valid and enforceable in accordance with its terms in all material respects and is in full force and effect. Prior to To the effective time best knowledge of the transactions contemplated in this Contribution AgreementCompany, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach other party to any Propertysuch lease is in default of its obligations thereunder, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
none of the Company or any of its Subsidiaries (b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting such lease) has at any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given time delivered or received any notice of default with respect to any term or condition of which remains uncured under any such agreement, including, without limitation, any ground lease, (ii) lease and no event has occurred which, with the giving of notice or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, would constitute a default under any such agreementlease.
(ii) All Permits material to the Company or its Subsidiaries required to have been issued to the Company or its Subsidiaries with respect to the real property owned, licensed or wouldleased by the Company or any of its Subsidiaries to enable such property to be lawfully occupied and used for all of the purposes for which it is currently occupied and used (separate and apart from any other properties), individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, have been lawfully issued and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases effect and all such real property complies with respect to the sale of any Propertyall applicable Legal Requirements and Policies covering such properties in all material respects.
(ciii) As presently conductedNeither the Company nor any of its Subsidiaries have received any notice, none of the operation of the buildingsnor has any knowledge, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building codepending, zoning ordinance threatened or other law contemplated condemnation proceeding affecting any real property owned, licensed or regulation, except for such violations that would not, individually leased by the Company or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse EffectSubsidiary.
(div) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition No portion of any real property owned, licensed or leased by the Company or any of its Subsidiaries has suffered any damage by fire or other casualty loss which has not heretofore been completely repaired and restored to its condition existing prior to such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration casualty. No portion of any material obligation of improvements (other than paving, parking and landscaped areas) constructed on any party thereto or the creation of a Lien upon any asset of the Contributorreal property owned, licensed or leased by the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary Company or any JV Entity of its Subsidiaries is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought located in a proceeding at law or in equity)special flood hazard area as designated by any Governmental Authority.
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Properties. (ai) The Properties are owned directly, in fee simple, by the Persons Except as set forth on Section 4.10 Schedule 4.12 annexed hereto, the Companies have good and marketable title to all properties and assets reflected on the Balance Sheet (except properties and assets sold or otherwise disposed of in the ordinary course of business and consistent with their prior practice after the date of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (orBalance Sheet), in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens. Except as set forth on Schedule 4.12, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time all properties of the transactions contemplated Companies (whether owned, leased or subleased) are in this Contribution Agreementcompliance with all material applicable laws, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Propertystatutes, except for Permitted Liens rules and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
regulations (b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, building, zoning and environmental laws) and all material covenants, conditions, restrictions or easements affecting the properties or their use or occupancy, and no notices of any ground lease, material violations thereof have been received.
(ii) no event has occurred Each of the leases and subleases (the "Leases") under which properties are leased or has been threatened in writingsubleased to the Companies (the "Leased Property") is executed, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liensunmodified, and in full force and effect (iii) all agreements in the form delivered or made available to the Buyer), and there are no other agreements, written or oral, between the Companies and any third parties claiming an interest in the Companies' interest in the Leased Property or otherwise affecting any Property required for their use and occupancy thereof. Each sublease which constitutes a Lease, is permitted by the continued useterms of the relevant prime lease or permit, occupancy, management, leasing and operation of each such Property (exclusive of space leases) are valid and binding and prime lease or permit is in full force and effect. No Contributor Subsidiary A description of each Lease (including, without limitation, the identity of the leased property, the landlord, the term and the monetary terms, including rental payments) is set forth in Schedule 4.12. The Companies are not in default under any of the Leases, and no material defaults (whether or JV Entity has granted an option not subsequently cured) by the Companies have been alleged thereunder. Each lessor and sublessor named in any of the Leases is not in default thereunder, and no defaults (whether or right of first refusal or offer pursuant to the leases with respect to the sale of any Propertynot subsequently cured) by such lessor have been alleged thereunder.
(ciii) As presently conducted, none All of the operation of the buildings, fixtures and other improvements comprising a part of the Properties Personal Property is in violation of any applicable building codegood condition and repair, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectordinary wear and tear excepted.
(div) Except for matters that would notas set forth on Schedule 4.12, individually no facilities, services or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor employees shared with any other party to any Lease, has given or received any notice of default Person are used in connection with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset business and operations of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectCompanies.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Samples: Agreement of Purchase and Sale of Stock (Ticketmaster Group Inc)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 Each of the Contributor Disclosure Letter Parent and its Subsidiaries has good and merchantable title to, or their direct a validly subsisting leasehold interest in, all properties owned or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (orleased by it, including all property reflected in the case consolidated pro forma balance sheet (after giving effect to the Transaction) referred to in Section 6.05(a) (except as sold or otherwise disposed of certain Properties, since the leasehold estate) date of such Propertybalance sheet in the ordinary course of business or as permitted by Section 8.02), in each case free and clear of all Liens except for Permitted Liens and Liens, if anyother than (i) as referred to in the consolidated balance sheets or in the notes thereto or in the pro forma balance sheet in each case referred to in Section 6.05(a) or (ii) otherwise permitted by Section 8.01. Schedule IV, given to secure mortgage indebtedness encumbering such PropertyPart A contains a true and complete list of each parcel of Real Property owned by the Parent and each of its Subsidiaries on the Third Restatement Effective Date, and the type of interest therein held by the Parent and/or its Subsidiaries. Prior to Schedule IV, Part B contains a true and complete list of each Real Property leased or subleased (including each Master Lease) by the effective time Parent and each of its Subsidiaries on the transactions contemplated in this Contribution AgreementThird Restatement Effective Date, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Propertythe type of interest therein held by the Parent and/or its Subsidiaries.
(b) Except Each Lease (including, without limitation, each Master Lease and Business Center Agreement) is valid and in full force and effect and none of the Parent, the Borrower, or any Subsidiary is in default under any such Lease and, to the knowledge of the Parent or the Borrower, the other party or parties thereto are not in default of its or their obligations thereunder except for matters that would notthe defaults set forth on Part C of Schedule IV, which defaults, individually or in the aggregate, reasonably be expected to shall not have a Contributor Material Adverse Effect. The Parent, (i) no Contributor Subsidiarythe Borrower and/or each Subsidiary is in possession of all the Real Property except with respect to portions thereof subleased to third parties pursuant to a Business Center Agreement in the ordinary course of business and in accordance with the provisions of the applicable Security Documents. As of the Third Restatement Effective Date, JV Entity, nor any other party to any agreement affecting any Property all Leases to which the Contributor, a Contributor Subsidiary Parent or JV Entity any of its Subsidiaries is a party are legal, valid and binding obligations of the Parent or such Subsidiary and, to the knowledge of the Parent and each of its Subsidiaries, of the lessor and each other Person which is a party thereto.
(other than c) Part C of Schedule IV sets forth a Lease true and accurate list of all Real Property leased or subleased (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground leaseall Master Leases) by the Parent, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or Borrower and the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause Subsidiaries that require the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none consent of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected landlord thereunder to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.the
Appears in 1 contract
Properties. (a) The Properties are owned directly, in fee simple, by the Persons set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed Except as owning a Property on Section 4.10 of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Beta Material Adverse Effect, Beta or a Subsidiary of Beta owns and has good title to all of its tangible personal property and has valid leasehold interests in all of its leased properties (ithe “Leased Real Property”) no Contributor Subsidiarynecessary to conduct their respective businesses as currently conducted, JV Entityfree and clear of all liens, nor claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (except in all cases for those permissible under any applicable loan agreements and indentures and for title exceptions, defects, encumbrances, liens, charges, restrictions, restrictive covenants and other party to any agreement affecting any Property to matters, whether or not of record, which in the aggregate do not materially affect the continued use of the property for the purposes for which the Contributor, a Contributor Subsidiary or JV Entity property is a party (other than a Lease (as such term is hereinafter defined) for space within such Propertycurrently being used), has given assuming the timely discharge of all obligations owing under or received any notice of default related to the owned real property, the tangible personal property and the leased property. No representation is made under this Section 4.17 with respect to any term intellectual property or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writingintellectual property rights, which with or without are the passage subject of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effectSection 4.18. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none Except as set forth on Section 4.17 of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance Beta Disclosure Letter or other law or regulation, except for such violations that as would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Beta Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default each lease with respect to any term or condition of any such the Leased Real Property (each, a “Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding legal, valid, binding, enforceable and in full force and effect.
, (eii) Except for matters that would not, individually Beta’s or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each Subsidiary of Beta’s possession and quiet enjoyment of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entityleased real property under such Lease has not been disturbed, and to the ContributorBeta’s Knowledgeknowledge, there are no disputes with respect to each such Lease; and (iii) neither Beta, a Subsidiary of Beta nor any other party thereto, enforceable against each Contributor Subsidiary to the Lease is in breach or JV Entitydefault under such Lease, and to no event has occurred or circumstance exists which, with the Contributor’s Knowledgedelivery of notice, each other party theretothe passage of time or both, in accordance with its termswould constitute such a breach or default, subject to applicable bankruptcyor permit the termination, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles modification or acceleration of equity (regardless of whether enforcement is sought in a proceeding at law or in equity)rent under such Lease.
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (BioScrip, Inc.)
Properties. (a) Each Owned Property or Leased Property and the use thereof comply in all material respects with all applicable Requirements of Law, including, without limitation, building and zoning ordinances and codes and Prescribed Laws, except to the extent that the failure to so comply is not reasonably expected to have an Individual Property Material Adverse Effect. The Properties are owned directly, Borrower has not committed any act which may give any Governmental Authority the right to cause the Borrower to forfeit any Mortgaged Property or any part thereof or any monies paid in fee simple, by the Persons set forth on Section 4.10 performance of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 Borrower's obligations under any of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (or, in the case of certain Properties, the leasehold estate) of such Property, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Property. Prior to the effective time of the transactions contemplated in this Contribution Agreement, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such PropertyLoan Documents.
(b) Except To the best knowledge of the Borrower, with respect to matters pending prior to the date of acquisition of any Mortgaged Property, no Condemnation or other proceeding has been commenced or, to the Borrower's actual knowledge, is contemplated with respect to all or any portion of any Owned Property or Leased Property or for matters the relocation of roadways providing access to such Owned Property or Leased Property, except any such Condemnation proceeding which is not reasonably expected to have an Individual Property Material Adverse Effect.
(c) Each Owned Property is comprised of one (1) or more parcels which constitute separate tax lots and do not constitute a portion of any other tax lot not a part of such Mortgaged Property.
(d) To the best knowledge of the Borrower, there are no pending or, to the actual knowledge of the Borrower, proposed special or other assessments to be paid by the Borrower for public improvements or otherwise affecting any Owned Property or, to the extent applicable, Leased Property, nor to the actual knowledge of the Borrower, are there any contemplated improvements to such Owned Property or Leased Property that would notmay result in such special or other assessments.
(e) Each Mortgage creates a valid assignment of, individually or a valid security interest in, certain rights under the leases on the applicable Mortgaged Property, subject only to a license granted to the Borrower or any Subsidiary of the Borrower to exercise certain rights and to perform certain obligations of the lessor under such leases, including the right to operate such Mortgaged Property. No Person other than the Lender has any interest in or assignment of such leases or any portion of the rents due and payable or to become due and payable thereunder other than rent-sharing agreements with lessors that may arise from time to time.
(f) All permits and approvals, including without limitation, certificates of occupancy required by any Governmental Authority for the use, occupancy and operation of each Owned Property or Leased Property in the aggregatemanner in which such Owned Property or Leased Property is currently being used, occupied and operated have been obtained and are in full force and effect, except to the extent that a failure to comply with this Section 4.26(f) could not reasonably be expected to have an Individual Property Material Adverse Effect with respect to such Owned Property or Leased Property or a Material Adverse Effect.
(g) All of the improvements which were included in determining the insured value of each Mortgaged Property lie wholly within the boundaries and building restriction lines of such Mortgaged Property, and no improvements on adjoining properties encroach upon such Mortgaged Property, and no easements or other encumbrances affecting such Mortgaged Property encroach upon any of the improvements, except those which are insured against by title insurance in favor of the Lender or except to the extent that the failure to comply with this Section 4.26(g) could not reasonably be expected to have an Individual Property Material Adverse Effect with respect to such Mortgaged Property or a Material Adverse Effect.
(h) All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid under applicable Requirements of Law in connection with the transfer of each Owned Property or, to the extent applicable, Leased Property to the Borrower or its Subsidiaries have been paid or are being paid simultaneously herewith. All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid under applicable Requirements of Law in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Mortgages, have been paid or are being paid therewith. All taxes and governmental assessments due and owing in respect of each Owned Property or, to the extent applicable, Leased Property have been paid, or an escrow of funds in an amount sufficient to cover such payments has been established hereunder or are insured against by the title insurance policy to be issued in connection with the Mortgages.
(i) All public utilities necessary to the continued use and enjoyment of each Mortgaged Property as presently used and enjoyed are located in the public right-of-way abutting such Mortgaged Property or are the subject of access or utilities easements of record for the benefit of such Mortgaged Property and insured under the title insurance policy in favor of the Lender for such Mortgaged Property except to the extent the failure to be subject to such easements or to be so insured would not reasonably be expected to have a Contributor Material Adverse Effect, (i) no Contributor Subsidiary, JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and (iii) all agreements affecting any Property required for the continued use, occupancy, management, leasing and operation of such Property (exclusive of space leases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending All paved or threatened proceedings unpaved roads necessary for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to the Contributor’s Knowledge, neither the Contributor, any Contributor Subsidiary nor any JV Entity, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset full utilization of the Contributor, the Contributor’s Subsidiaries Mortgaged Property for its current purpose have been completed and dedicated to public use and accepted by all governmental authorities or the JV Entities, except for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently are the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except access easements for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effectbenefit of such Mortgaged Property.
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Samples: Credit Agreement (Global Signal Inc)
Properties. (a) The Properties are owned directly, in fee simple, by the Persons Each applicable Xxxxxxx Xxxxxx Entity or Subsidiary set forth on Section 4.10 of the Contributor Disclosure Letter or their direct or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 of the Contributor Disclosure Letter Schedule 1.07(a) is insured under a policy of title insurance as the owner of of, and, to the Principals' Knowledge, the applicable Xxxxxxx Xxxxxx Entity or Subsidiary is the owner of, the fee simple estate (or, in the case of certain Fund Properties, the leasehold estate) of such Propertyto the Xxxxxxx Xxxxxx Entity's Fund Property identified on Schedule 1.07(a) as being owned by the applicable Xxxxxxx Xxxxxx Entity or Subsidiary, in each case free and clear of all Liens except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness encumbering such Fund Property. Prior to the effective time of the transactions mergers contemplated in this Contribution Agreementthe Formation Transaction Documentation, no Contributor Xxxxxxx Xxxxxx Entity or Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Fund Property, except for Permitted Liens and Liens, if any, given to secure mortgage indebtedness Indebtedness encumbering such Fund Property.
(b) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, to the Principals' Knowledge, (i1) no Contributor Subsidiarynone of the Xxxxxxx Xxxxxx Entities, JV Entityany of their Subsidiaries, nor any other party to any agreement affecting any Fund Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease (as such term is hereinafter defined) for space within such Fund Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, (ii2) no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary Xxxxxxx Xxxxxx Entity or JV Entityany of their Subsidiaries, except for Permitted Liens, and (iii3) all agreements affecting any Fund Property required for the continued use, occupancy, management, leasing and operation of such Fund Property (exclusive of space leasesLeases) are valid and binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant to the leases with respect to the sale of any Property.
(c) As To the Principals' Knowledge, as presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Fund Properties is are in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect. Neither the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority of any pending or threatened proceedings for the rezoning of any Property or portion thereof except for such notices or proceedings that would not, individually, or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(d) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i1) to the Contributor’s Principals' Knowledge, neither the Contributor, no Xxxxxxx Xxxxxx Entity or any Contributor Subsidiary nor any JV Entityof their Subsidiaries, nor any other party to any Lease, has given or received any notice of default with respect to any term or condition of any such Lease, (ii2) to the Contributor’s Principals' Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries Xxxxxxx Xxxxxx Entities or the JV Entitiesany of their Subsidiaries, except for Permitted Liens, and (iii3) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary Xxxxxxx Xxxxxx Entity or any JV Entity of their Subsidiaries is a party or by which any Contributor, Contributor Subsidiary or JV Xxxxxxx Xxxxxx Entity or any of their Subsidiaries or any Fund Property is bound or subject (collectively, the “"Leases”") is and will be valid and binding and in full force and effect.
(e) Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To the Contributor’s Knowledge, except as previously disclosed to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
Appears in 1 contract
Samples: Representation, Warranty and Indemnity Agreement (Douglas Emmett Inc)
Properties. (a) The Properties are owned directlyExcept as would not have, individually or in fee simplethe aggregate, by the Persons a Material Adverse Effect, or as set forth on Section 4.10 Schedule 4.17 to the Parent Disclosure Schedule, each Buyer Entity and its Subsidiaries have good and defensible title to all of the Contributor Disclosure Letter Oil and Gas Interests reflected in Parent Reserve Reports as attributable to interests owned by any Buyer Entity or any of their direct Subsidiaries, except for such Oil and Gas Interests sold, used, farmed out or indirect wholly owned subsidiaries. Each Contributor Subsidiary or JV Entity listed as owning a Property on Section 4.10 otherwise disposed of the Contributor Disclosure Letter is insured under a policy of title insurance as the owner of the fee simple estate (orsince December 31, 2014 in the case ordinary course of certain Properties, the leasehold estate) of such Propertybusiness, in each case free and clear of all Liens except for other than Permitted Liens and LiensProduction Burdens. Except as would not have, if anyindividually or in the aggregate, given a Material Adverse Effect, (i) each Oil and Gas Lease to secure mortgage indebtedness encumbering such Property. Prior to the effective time which any Buyer Entity or any of the transactions contemplated its Subsidiaries is a party is valid and in this Contribution Agreementfull force and effect, no Contributor Subsidiary or JV Entity shall take or omit to take any action to cause any Lien to attach to any Property, (ii) except for Permitted Liens and Liensviolations, if any, given to secure mortgage indebtedness encumbering such Property.
(b) Except for matters acts or omissions that would not, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect upon Parent, none of any Buyer Entity or any of their Subsidiaries has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Oil and Gas Lease, and (iii) none of EnerJex Parties or any of their Subsidiaries has received written notice from the other party to any such Oil and Gas Lease that a Buyer Entity or any of its Subsidiaries, as the case may be, has breached, violated or defaulted under any Oil and Gas Lease.
(b) Except as would not have, individually or in the aggregate, a Material Adverse Effect, (i) no Contributor Subsidiaryeither Parent or a Subsidiary of Parent has good and valid title to each material real property (and each real property at which material operations of any Buyer Entity or any of its Subsidiaries are conducted) owned by any Buyer Entity or any Subsidiary (but excluding the Oil and Gas Interests of EnerJex Parties), JV Entity, nor any other party to any agreement affecting any Property to which the Contributor, a Contributor Subsidiary or JV Entity is a party (other than a Lease Parent Real Property Leases (as such term is hereinafter definedowned property collectively, the “Parent Owned Real Property”) for space within such Property), has given or received any notice of default with respect to any term or condition of any such agreement, including, without limitation, any ground lease, and (ii) no event either a Buyer Entity or a Subsidiary of a Buyer Entity has occurred a good and valid leasehold interest in each material lease, sublease and other agreement under which any Buyer Entity or any of their Subsidiaries uses or occupies or has been threatened in writingthe right to use or occupy any material real property (or real property at which material operations of any Buyer Entity or any of their Subsidiaries are conducted) (but excluding the Oil and Gas Interests of EnerJex Parties) (such property subject to a lease, which with sublease or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any such agreement, or wouldthe “Parent Leased Real Property” and such leases, individually or together with subleases and other agreements are, collectively, the “Parent Real Property Leases”), in each case, free and clear of all such Liens other events, reasonably be expected to cause the acceleration of than any material obligation of any party thereto or the creation of a Lien upon any asset of any Contributor Subsidiary or JV Entity, except for Permitted Liens, and other than any conditions, encroachments, easements, rights-of-way, restrictions and other encumbrances that do not adversely affect the existing use of the real property subject thereto by the owner (iiior lessee to the extent a leased property) all agreements affecting any Property required for thereof in the continued use, occupancy, management, leasing and operation of such its business. Except as would not have, individually or in the aggregate, a Material Adverse Effect, (A) each Real Property (exclusive of space leases) are valid and Lease is valid, binding and in full force and effect. No Contributor Subsidiary or JV Entity has granted an option or right of first refusal or offer pursuant , subject to the leases with respect Remedies Exceptions and (B) no uncured default of a material nature on the part of any Buyer Entity or, if applicable, its Subsidiary or, to the sale knowledge of EnerJex Parties, the landlord thereunder, exists under any PropertyParent Real Property Lease, and no event has occurred or circumstance exists which, with or without the giving of notice, the passage of time, or both, would constitute a material breach or default under a Parent Real Property Lease.
(c) As presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Properties is in violation of any applicable building code, zoning ordinance or other law or regulation, except for such violations that Except as would notnot have, individually or in the aggregate, a Material Adverse Effect, (i) there are no leases, subleases, licenses, rights or other agreements affecting any portion of Parent Owned Real Property or Parent Leased Real Property that would reasonably be expected to have a Contributor Material Adverse Effect. Neither adversely affect the Contributor nor any Contributor Subsidiary nor any JV Entity has received any written notice from a Governmental Authority existing use of any pending or threatened proceedings for the rezoning of any such Parent Owned Real Property or portion thereof Parent Leased Real Property by any Buyer Entity or its Subsidiaries in the operation of its business thereon, (ii) except for such notices arrangements solely among a Buyer Entity and its Subsidiaries or proceedings among any Buyer Entity’s Subsidiaries, there are no outstanding options or rights of first refusal in favor of any other party to purchase any Parent Owned Real Property or any portion thereof or interest therein that would not, individually, or in the aggregate, reasonably be expected to have adversely affect the existing use of Parent Owned Real Property by EnerJex Parties in the operation of their business thereon, and (iii) neither a Contributor Material Adverse EffectBuyer Entity nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any person the right to use or occupy a material portion of a Parent Owned Real Property or Parent Leased Real Property that would reasonably be expected to adversely affect the existing use of such Parent Owned Real Property or Parent Leased Real Property by EnerJex Parties or their Subsidiaries in the operation of its business thereon.
(d) Except for matters that as would notnot have, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, (i) to all proceeds from the Contributor’s Knowledge, neither sale of Hydrocarbons produced from the Contributor, Oil and Gas Interests of EnerJex Parties are being received by EnerJex Parties in a timely manner and are not being held in suspense for any Contributor Subsidiary nor any JV Entity, nor any reason other party to any Lease, has given or received any notice than awaiting preparation and approval of default with respect to any term or condition of any such Lease, (ii) to the Contributor’s Knowledge, no event has occurred or has been threatened in writing, which with or without the passage of time or the giving of notice, or both, would, individually or together with all such other events, constitute a default under any Lease, or would, individually or together with all such other events, reasonably be expected to cause the acceleration of any material obligation of any party thereto or the creation of a Lien upon any asset of the Contributor, the Contributor’s Subsidiaries or the JV Entities, except division order title opinions for Permitted Liens, and (iii) each of the leases (and all amendments thereto or modifications thereof) to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which any Contributor, Contributor Subsidiary or JV Entity or any Property is bound or subject (collectively, the “Leases”) is and will be valid and binding and in full force and effectrecently drilled Wxxxx.
(e) Except for matters that All of the Wxxxx and all water, CO2 or injection wxxxx located on the Oil and Gas Leases or Units of EnerJex Parties and their Subsidiaries or otherwise associated with an Oil and Gas Interest of a Buyer Entity or its Subsidiaries have been drilled, completed and operated within the limits permitted by the applicable Oil and Gas Contracts and applicable Law, and all drilling and completion (and plugging and abandonment) of the Wxxxx and such other wxxxx and all related development, production and other operations have been conducted in compliance with all applicable Laws except, in each case, as would notnot have, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect, each of the Leases to which the Contributor, any Contributor Subsidiary or any JV Entity is a party or by which the Contributor, any Contributor Subsidiary, JV Entity or any Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of the Contributor or the applicable Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, enforceable against each Contributor Subsidiary or JV Entity, and to the Contributor’s Knowledge, each other party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) To All Oil and Gas Interests operated by EnerJex Parties and their Subsidiaries have been operated in accordance with reasonable, prudent oil and gas field practices and in compliance with the Contributor’s Knowledgeapplicable Oil and Gas Leases and applicable Law, except as previously disclosed where the failure to the Company, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that so operate would notnot have, individually or in the aggregate, reasonably be expected to have a Contributor Material Adverse Effect.
(g) None of the material Oil and Gas Interests of EnerJex 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 have, individually or in the aggregate, a Material Adverse Effect.
(h) None of the Oil and Gas Interests of Parent or its Subsidiaries are subject to any Tax partnership agreement or provisions requiring a partnership income Tax Return to be filed under Subchapter K of Chapter 1 of Subtitle A of the Code.
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