Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”). (b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time. (c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted. (d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Cardiogenesis Corp /CA), Agreement and Plan of Merger (Cryolife Inc), Merger Agreement (Cryolife Inc)
Properties. (a) Neither the Company nor any of its Subsidiaries own any real property or is a party to any Contract (including any option agreement) to purchase any interest in real property.
(b) Section 3.14(b) of the Company Disclosure Letter sets forth as of the date of this Agreement, the address of all Leased Real Property over 5,000 square feet, the identity of the lessor, lessee and current occupant (if different from the lessee) of such Leased Real Property and a list, as of the date of this Agreement, of all such leases, subleases, licenses and other occupancy agreements related thereto, including all amendments and supplements thereto and guaranties thereof (the “Real Property Leases”). The Company has made available to Parent complete, correct and accurate copies of each Real Property Lease. Except as set forth in Section 3.14(b) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has leased, subleased, licensed or otherwise granted to any Person the right to use or occupy any of the Leased Real Property over 5,000 square feet or any portion thereof. The Leased Real Property constitutes all of the real property used or occupied by the Company and its Subsidiaries in the conduct of their respective businesses.
(c) The Company or one of its Subsidiaries has owns good and valid and legally compliant leasehold title to, or (to the extent such concepts are applicable in the case of leased property and leased tangible assets, a valid jurisdiction(s) governing such leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), title) to the Leased Real Property free and clear of all Liens other than Liens, except (i) statutory ad valorem Permitted Liens and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions respects that were would not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do notreasonably be expected to be, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets material to which they relate in the business of the Company and its Subsidiaries Subsidiaries, taken as currently conducted (“Permitted Liens”)a whole.
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 3 contracts
Sources: Merger Agreement (Polycom Inc), Merger Agreement (Polycom Inc), Merger Agreement (Mitel Networks Corp)
Properties. (ai) A list of all real property owned or leased by the Company or a Subsidiary of the Company is set forth in the Company’s Disclosure Letter. The Company or one and each of its Subsidiaries has good and valid marketable title toto all real property owned by it (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any Liens except (i) liens for Taxes not yet due and payable and (ii) such easements, restrictions and encumbrances, if any, as are not material in character, amount or extent, and do not materially detract from the value, or in materially interfere with the case present use of leased property and leased tangible assets, a valid leasehold interest in, all the properties subject thereto or affected thereby. Each lease pursuant to which the Company or any of its assets constituting Subsidiaries as lessee, leases real or personal property is valid and in full force and effect as to the Company and the Subsidiaries and neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to any such lease, is in default or in violation of any material provisions of any such lease. The Company has previously delivered to Purchaser a complete and correct copy of each such lease. All real property owned or leased by the Company or any of its Subsidiaries are in all material respects in a good state of maintenance and repair (excludingnormal wear and tear excepted), conform in all material respects with all applicable ordinances, regulations and zoning laws and are considered by the Company to be adequate for purposes the current business of this sentencethe Company and its Subsidiaries. To the Knowledge of the Company, assets held under leases)none of the buildings, structures or other improvements located on any real property owned or leased by the Company or any of its Subsidiaries encroaches upon or over any adjoining parcel or real estate or any easement or right-of-way.
(ii) The Company and each of its Subsidiaries has good and marketable title to all tangible personal property owned by it, free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments except such Liens, if any, that are not yet past due or the material in character, amount or validity of which is being contested in good faith by appropriate proceedingsextent, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do notnot materially detract from the value, individually or in materially interfere with the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets properties subject thereto or affected thereby. With respect to which they relate personal property used in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of that is leased rather than owned, neither the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or nor any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title is in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19lease.
Appears in 3 contracts
Sources: Merger Agreement (MSB Financial Corp), Merger Agreement (Clifton Bancorp Inc.), Merger Agreement (Kearny Financial Corp.)
Properties. (a) The Company Pivotal and its Subsidiaries do not own any real property.
(b) Except as would not, individually or in the aggregate, be material to Pivotal and its Subsidiaries, taken as a whole, Pivotal or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, in all of its real properties and tangible assets constituting personal property (excluding, that are necessary for purposes of this sentence, assets held under leases)Pivotal and its Subsidiaries to conduct their respective businesses as currently conducted, free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes Taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedingsproceedings and for which adequate reserves have been established in accordance with GAAP, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, ’s and carriers’ or similar Liens arising in the ordinary course of business of the Company Pivotal or such Subsidiary consistent with past practice Subsidiary, (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company Pivotal and its Subsidiaries as currently conducted conducted, (iv) Liens specifically reflected on the Most Recent Pivotal Balance Sheet, (v) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations, (vi) zoning, building and other similar codes and regulations which are not violated in any material respect by the use and operation of any property of Pivotal and its Subsidiaries, (vii) Liens, easements, rights-of-way, covenants and other similar restrictions that have been placed by any developer, landlord or other Person on property over which Pivotal or any of its Subsidiaries has easement rights or on any property leased by Pivotal or any of its Subsidiaries and subordination or similar agreements relating thereto, in each case that do not adversely affect in any material respect the occupancy or use of any property of Pivotal and its Subsidiaries, and (viii) transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities Laws (“Permitted Liens”).
(b) . Section 4.18(b3.18(a) of the Company Pivotal Disclosure Letter sets forth a true and complete list of all real property owned by leased for the Company benefit of Pivotal or any of its Subsidiaries (“Owned Real Property”) and all property leased pursuant to a Contract providing for the benefit annual aggregate rent in excess of the Company or any of its Subsidiaries (“Leased Real Property”)$5,000,000. Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, Except as would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except asnot have, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed the tangible personal property currently used in Section 4.5 the operation of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases business of Leased Real Property shall remain valid Pivotal and binding its Subsidiaries is in accordance with their terms following the Effective Timegood working order (reasonable wear and tear excepted).
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company Pivotal and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company Pivotal and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 section 3.18 does not relate to intellectual property, which is the subject of Section 4.19section 3.19.
Appears in 3 contracts
Sources: Merger Agreement (Dell Technologies Inc), Merger Agreement (Dell Technologies Inc), Merger Agreement (Vmware, Inc.)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or reports identified in the case of leased property and leased tangible assets, a valid leasehold interest in, Disclosure Schedule list all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in owned (the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, "Owned Property") or leased as lessor or lessee (the "Leased Property" and other similar rights or restrictions that were not incurred in connection collectively with the borrowing of money or Owned Property, the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv"Property") existing Liens disclosed in by the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) Except as stated in the Disclosure Schedule, none of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree purchase options, rights of first refusal or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Timepreferential purchase rights.
(c) The Leased Property has been leased by the Company on the terms and conditions stated in the lease and amendments identified in the Disclosure Schedule. All obligations towards the lessors arising from the lease agreements referred to before have been complied with in all material respects. There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property disputes regarding those agreements pending or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conductedthreatened.
(d) Each To the best of the Company's knowledge, except as set forth on the Disclosure Schedule, no adjacent buildings or improvements extend across the boundaries of the Owned Property and no buildings or improvements forming part of the Owned Property extend onto any adjacent sites.
(e) Other than properties in the Triad Business Park which have been sold, the Company has not owned or leased any Property except the Property.
(f) The Disclosure Schedule contains a true, correct and its Subsidiaries has complied with the terms complete list of all leases to which it is a partyleases, subleases, tenancies, licenses and other rights of occupancy or use for all or any portion of any Property, and all such leases are guarantees and other agreements in full force respect thereof, all as amended, renewed and effectextended to the date thereof, except for any such noncompliance whether oral or failure written (the "Leases").
(g) The Company has heretofore delivered to be in full force Acquisition a true, correct and effect that, individually complete copy of each Lease (or written summary thereof in the aggregatecase of oral Leases).
(h) Each current tenant (the "Tenant") is in actual possession of its leased premises. No Rents violate any applicable law. For purposes of this Section 5, has not had the term "Rents" is defined to mean the basic, and would not reasonably be expected additional and percentage rents, all pass-throughs of taxes, expenses or other items, and all other sums payable by the Tenant to have a Material Adverse Effect. Each of the Company lessor (including, without limitation, utility charges) during the original and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19renewal terms thereof.
Appears in 3 contracts
Sources: Merger Agreement (Triad Park LLC), Merger Agreement (Triad Park LLC), Merger Agreement (Triad Park LLC)
Properties. (a) The Company or one of its KGS and the Subsidiaries has have good and valid fee title to, or in the case of leased property and leased tangible assetshave valid interests by easement, a valid leasehold interest Contract or otherwise in, all of its property and assets constituting (whether real, personal, tangible or intangible) reflected on the KGS Balance Sheet or acquired after the Balance Sheet Date in all material respects to all real and personal property that is necessary for KGS and the Subsidiaries to conduct its business as currently being conducted. Gas Services GP and each of the KWK Entities have good and valid fee title to, or have valid rights of interests by easement, Contract or otherwise in, all property and assets (excludingwhether real, for purposes personal, tangible or intangible) used in the business of this sentenceGas Services GP or the KWK Entities, as applicable. None of any of the aforementioned property or assets held under leases)is subject to any Lien, free and clear of all Liens other than except (i) statutory ad valorem and real estate and other Liens disclosed on Section 3.16 of the Seller Disclosure Schedules; (ii) Liens disclosed on the KGS Balance Sheet or notes thereto; (iii) Liens for current taxes taxes, assessments and assessments similar charges that are not yet past due or the amount or validity of which is are being contested in good faith by appropriate proceedings, faith; (iiiv) mechanics’, workmenmechanic’s, repairmenmaterialman’s, landlordcarrier’s, warehousemen’s, carriers’ or repairer’s and other similar Liens arising or incurred in the ordinary course of business or that are not yet due and payable or are being contested in good faith; (v) Liens incurred in the ordinary course of business since the Balance Sheet Date none of which are material to the ownership, use or operation of the Company assets of the Sold Entities; or such Subsidiary consistent with past practice (iiivi) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do Liens which are not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in material to the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and or operation of the assets to which they relate in the business of the Company and its Subsidiaries Sold Entities, taken as currently conducted whole (clauses (i) –(vi) of this Section 3.16 are, collectively, the “Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple Except as would not reasonably be expected to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except ashave, individually or in the aggregate, a Material Adverse Effect: (i) each Sold Entity has such easements, licenses, rights-of-way, permits, servitudes, leasehold estates, instruments creating an interest in real property, and other similar real estate interests (each, a “Right-of-Way”) that are necessary for the Sold Entities to own, use and operate their respective assets and properties in the manner that such assets and properties are currently owned, used and operated, and each such Right-of-Way is valid and free and clear of all Liens (other than Permitted Liens), (ii) the Rights-of-Way grant the rights purported to be granted thereby, (iii) each Sold Entity conducts its business and has and is being operated in a manner that does not had violate in any material respect any of the Rights-of-Way, (iv) each Sold Entity has fulfilled and performed all of its material obligations with respect to such Rights-of-Way and (v) no event has occurred or circumstance exists that allows, or after the giving of notice or the passage of time, or both, would allow limitation, revocation or termination of any Right-of-Way or would result in any impairment of the rights of the holder of any such Rights-of-Way. All pipelines operated by the Sold Entities are subject to Rights-of-Way, and there are no gaps (including any gap arising as a result of any breach by any Sold Entity of the terms of any Rights-of-Way) in the Rights-of-Way other than gaps that have not and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure to be in full force and effect thatto, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Each materially impair the conduct of the Company business of the Sold Entities, taken as a whole, as currently, and as currently planned by the Sold Entities to be, conducted.
(c) All tangible personal property owned, leased or licensed by the Sold Entities is adequate for its Subsidiaries enjoys peaceful and undisturbed possession under present uses in all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19material respects.
Appears in 3 contracts
Sources: Combined Credit Agreements (Quicksilver Resources Inc), Purchase Agreement (Crestwood Holdings LLC), Purchase Agreement (Quicksilver Resources Inc)
Properties. (a) (i) The Company or one and each of its Subsidiaries has good and valid marketable title to, or in the case of leased property and leased tangible assets, a valid leasehold interest interests in, all of its material real properties and material tangible assets constituting personal property and (excludingii) all such assets and real properties, for purposes other than assets and real properties in which the Company or any of this sentenceits Subsidiaries has leasehold interests, assets held under leases), are free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens Liens, except for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b4.21(b) of the Company Disclosure Letter Schedule sets forth a true complete and complete correct list of all real property and interests in real property, if any, currently owned by the Company or any of its Subsidiaries (each, an “Owned Real Property”). Section 4.21(b) of the Company Disclosure Schedule sets forth (i) a true and complete list of all real property leased for the benefit of leased, subleased or otherwise occupied by the Company or any of its Subsidiaries in respect of which the Company or any of its Subsidiaries has annual rental obligations of $100,000 or more (each, a “Leased Real Property”). Each of , (ii) the address for each Leased Real Property, (iii) current rent amounts payable by the Company and or its Subsidiaries has (i) good and marketable title in fee simple related to all Owned such Leased Real Property and (iiiv) good leasehold title to a description of the applicable lease, sublease or other agreement therefore and any and all Leased Real Propertyamendments, in each casemodifications, free side letters relating thereto. All of the leases, subleases and clear other agreements (each, a “Lease Agreement”) of all Liens except Permitted Liens. No parcel of Owned Real Property or the Leased Real Property are valid, binding and in full force and effect without penalty, acceleration, termination, repurchase right or other adverse consequence on account of the execution, delivery or performance of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby. Except as set forth in Section 4.21(b) of the Company Disclosure Schedule, no Lease Agreement is subject to any governmental decree Lien other than Permitted Liens, including any mortgage, pledge, lien, encumbrance, sublease, assignment, license or order other agreement granting to any third party any interest in such Lease Agreement or any right to the use or occupancy of any Leased Real Property. The Company and each of its Subsidiaries has performed all material obligations required to be sold or is being condemned, expropriated or otherwise taken performed by any public authority with or without payment of compensation therefor, nor, it to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effectdate under each Lease Agreement, and there exists are no default under any such lease by the Company, any of its Subsidiaries outstanding defaults or any other party thereto, nor any event circumstances which, with upon the giving of notice or lapse passage of time or both, would constitute a default thereunder or breach by the Company, any of its Subsidiaries or party under any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective TimeLease Agreement.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge Except as set forth in Section 4.21(b) of the CompanyCompany Disclosure Schedule, with respect to each Leased Real Property by Property, neither the Company or nor any of its Subsidiaries for the current has subleased, licensed or contemplated otherwise granted anyone a right to use or occupy such Leased Real Property or any portion thereof. The Company and each of such real property. To the knowledge its Subsidiaries enjoy peaceful and undisturbed possession of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or and the Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Merger Agreement (Rightnow Technologies Inc), Merger Agreement (Rightnow Technologies Inc)
Properties. 12.1 Prior to Completion, but subject to clause 12.4, the Seller shall procure that the Company is granted a lease in respect of each Real Property (or part of it, as the case may be) used by the Sky News Business as at the date of this agreement.
12.2 Each lease granted pursuant to clause 12.1 shall be in a form approved by the Purchaser, acting reasonably, but shall:
(a) The Company or one be for a term of its Subsidiaries has good and valid title tonot less than 15 years from Completion, or in the case of leased property and leased tangible assets, with a valid leasehold interest in, all of its assets constituting personal property (excluding, contractual right to renew for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business a further 5 years from expiry of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).initial term;
(b) Section 4.18(bbe on an arm’s length basis, on reasonable commercial terms and in a form appropriate to the jurisdiction in which the relevant Real Property is situated;
(c) enable the Company to continue to use the relevant Real Property in the same manner as it is used by Sky News as at the date of this agreement; and
(d) not impose any additional costs on the Company in respect of the relevant Real Property compared with the costs incurred by Sky News in relation to that Real Property in the period of 12 months immediately before Completion.
12.3 If any lease granted to the Company Disclosure Letter sets forth pursuant to clause 12.1 (or any right to occupy granted to the Company pursuant to clause 12.4(b)) relates to a true Real Property (or part of it) which, as at the date of this agreement, forms part of a wider building or site that is used by both the Sky News Business and complete list of all real property owned the Non-Sky News Business, the Seller shall procure (on terms approved by the Purchaser, acting reasonably) that from Completion all appropriate rights, facilities services arrangements and other agreements are put in place at no cost to the Company (including in respect of any separation works) to reflect the principle that the Company may continue to use the relevant Real Property in the same manner as it is used by Sky News at the date of this agreement.
12.4 If the Seller is unable to comply with clause 12.1 as a result of a restriction or any prohibition in a superior lease or other contract relating to the relevant Real Property in effect as at the date of its Subsidiaries (“Owned Real Property”) and all property leased for this agreement or the benefit Company is not in exclusive possession of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned relevant Real Property or Leased Real Property is subject it would be otherwise impractical to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, grant a lease having regard to the knowledge configuration of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased relevant Real Property and all amendments and modifications thereto are in full force and effectother circumstances:
(a) if applicable, and there exists the Seller shall (at no default under any such lease by cost to the Company, any of its Subsidiaries ) use all reasonable and commercially prudent endeavours to procure that the restriction or any other party thereto, nor any event which, with notice prohibition is waived or lapse of time or both, would constitute amended prior to Completion to allow a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably lease to be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding granted in accordance with their terms following the Effective Time.clauses 12.1 and 12.2; and
(cb) There are no contractual or legal restrictions that preclude or materially restrict if, having complied with clause 12.4(a), the ability Seller is unable to use any Owned comply with clause 12.1 in respect of a Real Property or(or part of it, as the case may be) used by Sky News at the date of this agreement, the Seller shall procure that the Company is granted a right to the knowledge of the Company, Leased occupy that Real Property (or the relevant part of it) on terms approved by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the CompanyPurchaser, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a partyacting reasonably, and all such leases are in full force and effect, except for any such noncompliance or failure otherwise consistent with clauses 12.2(a) 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.1912.2(d).
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of Shares, Sale and Purchase Agreement
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b4.14(a)(i) of the Company Disclosure Letter sets forth a true and complete list, as of May 31, 2017, of the real property owned, directly or indirectly, by the Company or any of its Subsidiaries (or any entity in which the Company or its Subsidiary, directly or indirectly, owns an equity interest) which summary sets forth (A) a list of each residential and mixed-use project, along with the name of the Subsidiary that owns each such project, (B) a list of properties currently in the entitlement process, along with the name of the Subsidiary that owns each such property, and (C) a list of non-core multifamily projects and sites, along with the name of the Subsidiary that owns each such project. Except for the Owned Real Property and the JV Owned Real Property set forth on Section 4.14(a)(i) of the Company Disclosure Letter, as of the date of this Agreement, neither the Company nor any Subsidiary nor, to the knowledge of the Company, any Joint Venture, owns, directly or indirectly, any other real property (or direct or indirect interest therein). The Company or one of its Subsidiaries, as applicable, has good, valid and marketable fee simple title to all real property owned by the Company or any of its Subsidiaries as of the date hereof (but specifically excluding any water or riparian rights and reservations owned by the Company and/or any of its Subsidiaries, the “Owned Real Property”) and, to the knowledge of the Company, the Joint Ventures have good, valid and marketable fee simple title to all real property leased owned by the Joint Ventures as of the date hereof (but specifically excluding any water or riparian rights and reservations owned by the Joint Ventures, the “JV Owned Real Property”), which Owned Real Property and, to the knowledge of the Company, JV Owned Real Property is free and clear of all Liens other than Permitted Liens; provided that, “Liens” shall not be deemed to include any pledges, claims, liens, charges, encumbrances or security interests which encumber, are secured by or relate to (x) any entity in which the Company or its Subsidiaries holds an equity interest which entity is not consolidated with the Company’s financial statements in accordance with GAAP, or (y) any such entity’s assets. Neither the Company, any of its Subsidiaries, the Owned Real Property nor, to the knowledge of the Company, any Joint Venture of JV Owned Real Property, is a party to, the subject of or obligated under any option, right of first refusal or other contractual right to sell, dispose of or lease any of the Owned Real Property or JV Owned Real Property or any portion thereof or direct or indirect interest therein to any Person (other than pursuant to this Agreement) other than in the ordinary course of business. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any Joint Venture is a party to any agreement or option to purchase any real property or interest therein other than in the ordinary course of business.
(ii) Section 4.14(a)(ii) of the Company Disclosure Letter sets forth a list of each real property which, as of the date of this Agreement, is under contract for the benefit of purchase or for sale by the Company or any of its Subsidiaries, or, to the knowledge of the Company, any Joint Venture.
(iii) Except as set forth on Section 4.14(a)(iii) of the Company Disclosure Letter, and except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any Joint Venture, has subleased, licensed or otherwise granted any person the right to use or occupy any Owned Real Property or JV Owned Real Property or any portion thereof (“Leased Real PropertyTenant Leases”). Each To the knowledge of the Company, neither the Company nor any of its Subsidiaries nor Joint Venture is in breach or default under any Tenant Lease.
(iv) The Company and/or the applicable Subsidiaries of the Company have made available to Parent and Merger Sub, copies of all of the most recent policies of owner’s title insurance insuring the Owned Real Property or JV Owned Real Property (individually each, a “Company Title Insurance Policy”), which, in each case, the Company and its Subsidiaries have in their possession, and to the knowledge of the Company each such Company Title Insurance Policy is valid and in full force and effect with respect to the Person to which the policy was issued. Since January 1, 2014, no written claim has (i) good and marketable title in fee simple to all been made against any Company Title Insurance Policy insuring any Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, insuring any JV Owned Real Property, which, individually or in the aggregate, would be material to any Owned Real Property or JV Owned Real Property.
(v) As of the date hereof, except for assessments by municipal utility or other similar districts in regard to all or substantially all property within district boundaries, neither the Company nor any of its Subsidiaries have received written notice of any pending or proposed special assessments affecting the Owned Real Property, JV Owned Real Property, or any portion thereof. As of the date hereof, except for assessments by municipal utility or other similar districts in regard to all or substantially all property within district boundaries, no assessments for public improvements have been made against any Owned Real Property, or, to the knowledge of the Company, any JV Owned Real Property which, individually or in the aggregate, would be material to any Owned Real Property or JV Owned Real Property.
(b) Section 4.14(b) of the Company Disclosure Letter sets forth a list, as of the date hereof, of all Material Real Property Leases to which the Company or any of its Subsidiaries is a named tenant or licensee (or a successor or assignee thereof) or otherwise has the right to occupy real property, along with the address (other than with respect to groundwater leases) of all such real property leased pursuant to the Material Real Property Leases and the Subsidiary which is a party to such Material Real Property Leases. The Company has made available to Parent materially true, correct and complete copies of such Material Real Property Leases on or prior to the date hereof. To the knowledge of the Company, the Company and each of its Subsidiaries has complied in all material respects with the terms of the real property leases, ground leases, subleases or real property licenses to which the Company or any of its Subsidiaries is a named tenant, subtenant or licensee (or successor or assignee thereof) (the “Real Property Leases” and such condemnationreal property, expropriation or taking been proposed. All leases of the “Leased Real Property”). As of the date hereof, neither the Company nor any of its Subsidiaries has received a written notice of any material default under any Real Property Lease, and all amendments and modifications thereto such Real Property Leases are in full force and effect, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting creditors generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at Law) and there exists no except for such noncompliance or failure to be in full force and effect that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as set forth on Section 4.14(b) of the Company Disclosure Letter, and except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has subleased, licensed or otherwise granted any person the right to use or occupy any Leased Real Property or any portion thereof.
(c) Section 4.14(c) of the Company Disclosure Letter sets forth a list of all Material Management Agreements and Material Construction Agreements. The Company has made available to Parent materially true, correct and complete copies of such Material Management Agreements and Material Construction Agreements on or prior to the date hereof. As of the date hereof, neither the Company nor any of its Subsidiaries has received a written notice of any material default under any Material Management Agreement or Material Construction Agreement, and all such lease agreements are in full force and effect, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting creditors generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at Law) and except for such defaults or failure to be in full force and effect that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. None of the Company or any of its Subsidiaries is a party to any agreement pursuant to which the Company or any of its Subsidiaries manages or manages the development of any real property for any third party.
(d) As of the date hereof, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any Joint Venture has received written notice of any existing or pending appropriation, condemnation, eminent domain or like proceedings or similar actions that affect any Owned Real Property, Leased Real Property or JV Owned Real Property, (ii) to the knowledge of the Company, no condemnation, eminent domain or like proceeding or similar action is currently threatened in writing and (iii) neither the Company nor any of its Subsidiaries or any other party theretoSubsidiaries, nor any event whichnor, with notice or lapse to the knowledge of time or both, would constitute a default thereunder by the Company, any Joint Venture has received any written notice of the intention of any Governmental Entity or other Person to take or use any Owned Real Property or Leased Real Property.
(e) Except as set forth on Section 4.14(e) of the Company Disclosure Letter, no certificate, variance, permit or license from any Governmental Entity having jurisdiction over any of the Owned Real Properties or, to the knowledge of the Company, the JV Owned Real Properties or any agreement, easement or other right that is necessary to permit the current use by the Company of the Owned Real Properties or, to the knowledge of the Company, the JV Owned Real Properties has failed to be obtained or is not in full force and effect, except for such failures to be in full force and effect that, individually, or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. Except as set forth on Section 4.15(e) of the Company Disclosure Letter or as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any Joint Venture, has received written notice of any existing zoning or land use violations with respect to any Owned Real Property, Leased Real Property or JV Owned Real Property; (ii) there are no pending actions initiated by or on behalf of the Company, any Subsidiary of the Company or, to the knowledge of the Company, any Joint Venture to change or redefine the zoning classification or land use approvals of all or any portion of any Owned Real Property, Leased Real Property or JV Owned Real Property, except for actions which may be initiated in the ordinary course of business and pursuant to a plan of development or redevelopment prepared by the Company and/or its Subsidiaries or a Joint Venture, a true and correct copy of which has been provided to Parent; and (iii) to the knowledge of Company, each Owned Real Property, Leased Real Property and JV Owned Real Property has adequate access available to operate as it is currently being operated.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on the Company and except as set forth on Section 4.14(f) of the Company Disclosure Letter, and except for work performed at or materials furnished to Owned Real Property, Leased Real Property or JV Owned Real Property in the ordinary course of business within 120 days (or such longer period to the extent that the applicable underlying agreement for services and/or materials allows a payment period in excess of 120 days) prior to the date hereof, all material work performed or materials furnished to the Owned Real Property, Leased Real Property and, to the knowledge of the Company, JV Owned Real Property prior to the date hereof has (i) been paid for in full, (ii) will be paid in the ordinary course of business or (iii) is being contested in good faith by appropriate proceedings and with adequate reserves established for payment in accordance with GAAP.
(g) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company and each of its Subsidiaries or any other party theretohas good and valid title to all their respective personal property and assets (but excluding the Owned Real Property and Leased Real Property), except for Permitted Liens and such personal property is in reasonably good working order and condition, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Assuming All such personal property and assets, are free and clear of all consentsconditions, approvals encroachments, easements, rights of way, restrictions and authorizations listed Liens, except for (A) Permitted Liens and (B) such other conditions, encroachments, easements, rights of way, restrictions and Liens that would not, individually or in Section 4.5 of the aggregate, reasonably be expected to have a Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective TimeMaterial Adverse Effect.
(ch) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects geotechnical or material adverse physical soil conditions adversely affecting any portion of the Owned Real Property or Leased JV Owned Real PropertyProperty which would preclude development thereof or render development thereof in accordance with the current business plan of the Company uneconomic such that the Company’s management would be reasonably likely to determine not to proceed with such development. All plantsTo the knowledge of the Company, warehouses, distribution centers, structures and other buildings on no portion of the Owned Real Property or Leased JV Owned Real Property are adequately maintained includes any archeological sites, paleontological sites, historical sites, artifacts or burial grounds of historical or cultural significance that would preclude development thereof or render development thereof in all material respects and are in good operating condition and repair for accordance with the requirements of the current business plan of the Company and its Subsidiaries as currently conducteduneconomic such that the Company’s management would be reasonably likely to determine not to proceed with such development.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Merger Agreement (Forestar Group Inc.), Merger Agreement (Horton D R Inc /De/)
Properties. (a) The Company or one of its Subsidiaries has Subsidiaries, as the case may be, (i) holds good and valid fee simple title to, or to all of the properties and assets reflected in the case of leased property and leased tangible assets, a valid leasehold interest in, all Company Current Balance Sheet as being owned by the Company or one of its Subsidiaries or acquired after the date thereof (collectively, with respect to real property, the “Company Owned Real Property”) (except for assets constituting personal property (excluding, for purposes other than Company Owned Real Property) sold or otherwise disposed of this sentence, assets held under leasessince the date thereof in the ordinary course of business), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens Liens, except for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedingsPermitted Liens, (ii) mechanics’holds the Company Owned Real Property, workmen’sand each portion thereof or interest therein, repairmen’sfree of any outstanding options or rights of first refusal or any offers to sell, landlord’spurchase or lease or any Occupancy Agreements, warehousemen’sexcept as set forth on Section 3.8 of the Company Disclosure Letter, carriers’ or similar Liens arising (iii) except as set forth on Section 3.8 of the Company Disclosure Letter, is the lessee of all leasehold estates reflected in the ordinary course Company Current Balance Sheet or acquired after the date thereof (except for leases that have expired by their terms since the date thereof), each of business which, by address and store number, is set forth on Section 3.8 of the Company Disclosure Letter (collectively, with respect to real property, the “Company Leased Real Property”) (including those stores that have been approved for closing as noted therein) and (w) with respect to each Company Ground Leased Property, holds good and valid leasehold interest therein, free and clear of all Liens (except for Permitted Liens) and Occupancy Agreements, (x) is in possession of the properties purported to be leased thereunder and none of such properties is affected by any Occupancy Agreements, and each such lease is valid and in full force and effect, constitutes a valid and binding obligation of the Company or the applicable Subsidiary of the Company, and to the Company’s knowledge, each other party thereto, enforceable against the Company or the applicable Subsidiary of the Company and, to the Company’s knowledge, each other party thereto, except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies, (y) except as set forth on Section 3.8 of the Company Disclosure Letter, the Company has not received any written notice of termination or cancellation of or of a breach or default under any such lease, and (z) except as set forth on Section 3.8 of the Company Disclosure Letter, neither the Company nor the applicable Subsidiary consistent of the Company, nor, to the Company’s knowledge, any other party thereto, is or is alleged to be in material violation thereof or in material default in respect thereof, nor has there occurred any event or condition which (with past practice or without notice or lapse of time or both) would constitute a material violation thereof or a material default thereunder. The Company has provided Parent with (or made available to Parent on the Company’s Virtual Premises data site prior to the date hereof) true, complete and correct copies of each of the leases for the Company Leased Real Property, including all amendments and supplements thereto and all material notices delivered or received by the Company or its Subsidiaries in connection therewith. For purposes of the preceding sentence, each notice delivered or received by the Company or a Subsidiary thereof in connection with a lease of the Company Leased Real Property shall be deemed a material notice unless such notice (i) does not affect the substantive rights and/or obligations of the parties to the related lease, (ii) has been superseded by a subsequent amendment, supplement or notice made available to Parent on the Company’s Virtual Premises data site prior to the date hereof, (iii) encumbrances on real property is no longer in effect by being either withdrawn or abandoned, or through the nature passage of zoning restrictionstime, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions relates to a default under the related lease that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such propertieshas been cured, (iv) existing Liens discloses a matter of public record otherwise disclosed in the Company’s consolidated balance sheet as at December 31Company Disclosure Letter, 2010 or (or the notes theretov) included is related to a matter otherwise disclosed in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation Disclosure Letter. Except as set forth on Section 3.8 of the assets Company Disclosure Letter, none of the leases of the Company Leased Real Property is guaranteed by any third party, none of the rights of the Company or any of its Subsidiaries under any leases for Company Leased Real Property will be subject to which they relate termination or modification as the result of the consummation of the transactions contemplated by this Agreement and the Company Transaction Documents, and upon consummation of the Merger, the Surviving Corporation will have succeeded to all of the rights, title and interest of the Company or its Subsidiaries either directly or indirectly by ownership of the Company’s Subsidiaries under each of such leases. Section 3.8 of the Company Disclosure Letter sets forth a true, correct and complete list of the Company Owned Real Property and a true, correct and complete list of the most recent title insurance policies or reports relating to the Company Owned Real Property and the Company Ground Leased Property. The Company Leased Real Property and Company Owned Real Property comprise all of the real property owned or leased by the Company and/or its Subsidiaries and used in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real operated. All material personal property shown to be owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries on the Company Current Balance Sheet have been maintained in accordance with the Company’s and its Subsidiaries’ normal practices and are in usable condition for the operation of the Company’s and its Subsidiaries’ businesses, ordinary wear and tear excepted. To the Company’s knowledge, there are no tax abatements or exemptions specifically affecting any Company Owned Real Property or any Company Ground Leased Property and neither the Company nor any of its Subsidiaries has received any written notice of any proposed increase in the assessed valuation of any Company Owned Real Property or Company Ground Leased Property or of any proposed public improvement assessments. The Company has provided Parent with (ior made available to Parent on the Company’s Virtual Premises data site prior to the date hereof) good true, complete and marketable title in fee simple to all correct copies of the most recent tax bills for each Company Owned Real Property and (ii) good leasehold title to all each Company Ground Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Company Owned Real Property or Company Ground Leased Real Property is subject to any governmental decree or order to be sold or comprised of a tax lot that also encompasses property that is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any not such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or Company Ground Leased Property. There is no pending, or, to the knowledge of the Company’s knowledge, Leased Real Property by the Company or any of its Subsidiaries for the current threatened or contemplated use of such real property. To the knowledge of the Companycondemnation, there are no material latent defects eminent domain or material adverse physical conditions similar Proceeding affecting the any Company Owned Real Property or any portion thereof or any Company Ground Leased Property or any portion thereof. To the Company’s knowledge, there exists no fact or condition that is reasonably likely to result in the termination of the existing access to any Company Owned Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Company Leased Real Property or Company Ground Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conductedProperty.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Merger Agreement (Tween Brands, Inc.), Merger Agreement (Dress Barn Inc)
Properties. (a) Section 4.11(a) of the Company Disclosure Letter sets forth a true, correct and complete list of the common name and address of each hotel owned or leased (including ground leased) by the Company or any Company Subsidiary as lessee or sublessee, as of the date of this Agreement (all such real property interests, together with 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, are individually referred to herein as a “Company Property”). As of the date hereof, each of the Company Properties is owned or leased by the Company or the Company Subsidiary indicated on Section 4.11(a) of the Company Disclosure Letter. There are no real properties that the Company or any Company Subsidiary is obligated to buy, lease or sublease at some future date.
(b) The Company or one of its Subsidiaries has a Company Subsidiary owns good and valid fee simple title toor leasehold title (as applicable) to the Company Properties, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases)each case, free and clear of all Liens other than Encumbrances, except for Company Permitted Encumbrances, none of which Company Permitted Encumbrances have had, and would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. For the purposes of this Agreement, “Company Permitted Encumbrances” shall mean any (i) Encumbrances relating to any Indebtedness set forth on Section 4.11(b)(i) of the Company Disclosure Letter, (ii) statutory ad valorem and real estate and or other Liens Encumbrances for current taxes and Taxes or assessments that are not yet past due (or are due but not yet delinquent) or the amount or validity of which is being contested in good faith by appropriate proceedingsproceedings and for which adequate reserves are being maintained in accordance with GAAP, (iiiii) the terms of any Company Major Leases, Company Ground Leases or any other leases, subleases or licenses entered into by the applicable Company Subsidiary as landlord, sublandlord or licensor in the ordinary course of business, (iv) Encumbrances imposed or promulgated by Law or any Governmental Authority, including zoning regulations, permits and licenses, (v) Encumbrances (but excluding Encumbrances relating to any Indebtedness other than as set forth on Section 4.11(b)(i) of the Company Disclosure Letter) that are disclosed on the title insurance policies or title insurance commitments listed on Section 4.11(b)(v) of the Company Disclosure Letter previously made available to Park (including any air rights described in such Encumbrances), (vi) any right, title or interest of a lessor or sublessor set forth in any Company Ground Lease, (vii) any Encumbrance in favor of a lessor or sublessor set forth in any Company Ground Lease to secure unpaid rent, (viii) any cashiers’, landlords’, workers’, mechanics’, carriers’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or ’s and materialmen’s liens and other similar Liens arising Encumbrances imposed by Law and incurred in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, that are related to obligations not yet due and other similar rights or restrictions that were not incurred in connection with the borrowing of money payable or the obtaining validity of advances or credit which is being contested in good faith by appropriate proceedings and (ix) any other Encumbrances (but excluding Encumbrances relating to Indebtedness) that do not, individually or in not materially impair the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in value of the Company’s consolidated balance sheet as at December 31, 2010 (applicable Company Property or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the applicable Company and its Subsidiaries Property as currently conducted (“Permitted Liens”).
(b) used and operated. Section 4.18(b4.11(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the describes any material Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit Permitted Encumbrances that, as of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Propertydate hereof, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is are being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are contested in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conductedfaith by appropriate proceedings.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Merger Agreement (Chesapeake Lodging Trust), Merger Agreement (Park Hotels & Resorts Inc.)
Properties. (ai) The Company Section 5.03(s)(i) of FNBB’s Disclosure Schedule contains a complete and correct list of all real property or one premises owned or operated by FNBB as of the date hereof. Other than as disclosed in Section 5.03(s)(i) of FNBB’s Disclosure Schedule, none of FNBB or any of its Subsidiaries has good owns, and valid no such entity is in the process of foreclosing (whether by judicial process or by power of sale) or otherwise in the process of acquiring title to, except pursuant to foreclosures which are pending in the ordinary course of business consistent with past practice, any real property or premises on the date hereof in whole or in part.
(ii) Section 5.03(s)(ii) of FNBB’s Disclosure Schedule contains a complete and correct list of all real property or premises leased or subleased in whole or in part by FNBB or any of its Subsidiaries, and together with a list of applicable leases or subleases and the case name of leased property and leased tangible assets, a valid leasehold interest inthe lessor or sublessor.
(iii) To FNBB’s Knowledge, all real and personal property owned by FNBB or any of its assets constituting personal property Subsidiaries or presently used by any of them in their respective business is in a good condition (excludingordinary wear and tear excepted) and is sufficient to carry on their respective business in the ordinary course of business consistent with their past practices. FNBB has good, for purposes of this sentence, assets held under leases)marketable and indefeasible title, free and clear of all Liens Liens, to all of the material properties and assets, real and personal, reflected on the consolidated balance sheet of FNBB as of September 30, 2017 included in FNBB’s SEC Reports, or acquired after such date, other than properties sold by FNBB or any of its Subsidiaries in the ordinary course of business, except (iA) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of payable for which is being contested in good faith by appropriate proceedingsadequate reserves have been established, (iiB) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising pledges to secure deposits incurred in the ordinary course of its banking business of the Company or such Subsidiary consistent with past practice practice, (iiiC) encumbrances such imperfections of title, easements and encumbrances, if any, as are not material in character, amount or extent, (D) as reflected on real property the consolidated balance sheet of FNBB as of September 30, 2017 included in FNBB’s SEC Reports and/or (E) as shown on the nature title policies listed in Section 5.03(s)(iii) of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, FNBB’s Disclosure Schedule.
(iv) existing Liens disclosed in the CompanyAll real and personal property which is material to FNBB’s business on a consolidated balance sheet as at December 31, 2010 (basis and leased or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned licensed by the Company FNBB or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit is held pursuant to leases or licenses which are valid obligations of the Company FNBB or any of its Subsidiaries (“Leased Real Property”). Each and, to FNBB’s Knowledge, are valid and binding obligations of the Company other parties thereto, enforceable against FNBB or such Subsidiary of FNBB, and its Subsidiaries has to FNBB’s Knowledge, the other parties thereto, in accordance with their terms (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and clear similar laws of general applicability relating to or affecting creditor’s rights or by general equity principles).
(v) Except as set forth in Section 5.03(s)(v) of FNBB’s Disclosure Schedule, such leases will not terminate or lapse prior to the Effective Time and FNBB and each of its Subsidiaries has the right to use and occupy such leased real property for the full term, and in accordance with the conditions of the lease relating thereto. Neither FNBB nor any of its Subsidiaries has received any written notice of termination, cancellation, breach or default under any such real property lease and, to the Knowledge of FNBB as of the date hereof, no event has occurred, and no circumstances or condition exists, that (with or without notice or lapse of time, or both) will, or would reasonably be expected to, (A) result in a violation or breach of any of the provisions of any real property lease, (B) give any Person the right to declare a default or exercise any remedy under any real property lease, (C) give any Person the right to accelerate the maturity or performance of any real property lease, or (D) give any Person the right to cancel, terminate or modify any real property lease. To FNBB’s Knowledge, FNBB and its Subsidiaries are in compliance with all Liens except Permitted Liensapplicable health and safety related requirements for the real property owned by any of them, including those requirements under the Americans with Disabilities Act of 1990, as amended. No parcel None of Owned Real Property the owned or Leased Real Property is subject to any governmental decree leased premises or order to be sold properties described in paragraph (i) or is being condemned, expropriated (ii) above have been condemned or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation Governmental Entity and no condemnation or taking been proposed. All leases of Leased Real Property is threatened or contemplated and all amendments and modifications thereto are in full force and effectnone thereof is subject to any claim, and there exists no default under any such lease by the Company, any of its Subsidiaries contract or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not law which could reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals materially and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual adversely affect its use or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries value for the current or contemplated use purposes now made of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conductedit.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Merger Agreement (FNB Bancorp/Ca/), Merger Agreement (Trico Bancshares /)
Properties. (ai) The Company Section 5.03(s)(i) of Cornerstone’s Disclosure Schedule contains a complete and correct list of all real property or one premises owned or operated by Cornerstone as of the date hereof. Other than as disclosed in Section 5.03(s)(i) of Cornerstone’s Disclosure Schedule, none of Cornerstone or any of its Subsidiaries has good owns, and valid no such entity is in the process of foreclosing (whether by judicial process or by power of sale) or otherwise in the process of acquiring title to, except pursuant to foreclosures which are pending in the ordinary course of business consistent with past practice, any real property or premises on the date hereof in whole or in part.
(ii) Section 5.03(s)(ii) of Cornerstone’s Disclosure Schedule contains a complete and correct list of all real property or premises leased or subleased in whole or in part by Cornerstone or any of its Subsidiaries, and together with a list of applicable leases or subleases and the case name of leased property and leased tangible assets, a valid leasehold interest inthe lessor or sublessor.
(iii) To Cornerstone’s Knowledge, all real and personal property owned by Cornerstone or any of its assets constituting personal property Subsidiaries or presently used by any of them in their respective business is in a good condition (excludingordinary wear and tear excepted) and is sufficient to carry on their respective business in the ordinary course of business consistent with their past practices. Cornerstone has good, for purposes of this sentence, assets held under leases)marketable and indefeasible title, free and clear of all Liens Liens, to all of the material properties and assets, real and personal, reflected on the consolidated balance sheet of Cornerstone as of December 31, 2024, or acquired after such date, other than properties sold by Cornerstone or any of its Subsidiaries in the ordinary course of business, except (iA) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of payable for which is being contested in good faith by appropriate proceedingsadequate reserves have been established, (iiB) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising pledges to secure deposits incurred in the ordinary course of its banking business consistent with past practice, (C) such imperfections of title, easements and encumbrances, if any, as are not material in character, amount or extent, or (D) as reflected on the consolidated balance sheet of Cornerstone as of December 31, 2024.
(iv) All real and personal property which is material to Cornerstone’s business on a consolidated basis and leased or licensed by Cornerstone or any of its Subsidiaries is held pursuant to leases or licenses which are valid obligations of Cornerstone or any of its Subsidiaries and, to Cornerstone’s Knowledge, are valid and binding obligations of the Company other parties thereto, enforceable against Cornerstone or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenantsCornerstone, and to Cornerstone’s Knowledge, the other similar rights or restrictions that were not incurred parties thereto, in connection accordance with their terms, subject to the borrowing of money or the obtaining of advances or credit Bankruptcy and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and Equity Exception.
(v) Except as set forth in Section 5.03(s)(v) of Cornerstone’s Disclosure Schedule, such leases will not terminate or lapse prior to the Effective Time and Cornerstone and each of its Subsidiaries has the right to use and occupy such leased real property for the full term, and in accordance with the conditions of the lease relating thereto. Neither Cornerstone nor any of its Subsidiaries has received any written notice of termination, cancellation, breach or default under any such matters real property lease and, to the Knowledge of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation Cornerstone as of the assets to which they relate date hereof, no event has occurred, and no circumstances or condition exists, that (with or without notice or lapse of time, or both) will, or would reasonably be expected to, (A) result in the business a violation or breach of any of the Company provisions of any real property lease, (B) give any Person the right to declare a default or exercise any remedy under any real property lease, (C) give any Person the right to accelerate the maturity or performance of any real property lease, or (D) give any Person the right to cancel, terminate or modify any real property lease. To Cornerstone’s Knowledge, Cornerstone and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of are in compliance with all applicable health and safety related requirements for the Company Disclosure Letter sets forth a true and complete list of all real property owned by any of them, including those requirements under the Company Americans with Disabilities Act of 1990, as amended. None of the owned or leased premises or properties described in paragraph (i) or (ii) above have been condemned or otherwise taken by any Governmental Entity and no condemnation or taking is threatened or contemplated and none thereof is subject to any claim, contract or law which might adversely affect its use or value for the purposes now made of it.
(vi) Except as set forth in Section 5.03(s)(vi) of Cornerstone’s Disclosure Schedule, (A) neither Cornerstone nor any of its Subsidiaries has granted any options or rights of first refusal to purchase any real property owned by Cornerstone or any of its Subsidiaries (“Owned Real Property”or any portion thereof or interest therein), (B) and all neither Cornerstone nor any of its Subsidiaries has leased, subleased, licensed or granted occupancy rights in any portion or any real property leased for owned by Cornerstone or any of its Subsidiaries, (C) to Cornerstone’s Knowledge, no other Person has any rights to the benefit use, occupancy or enjoyment of any real property owned by Cornerstone or any of its Subsidiaries pursuant to any lease, sublease, license, occupancy or other agreement.
(vii) Except as set forth in Section 5.03(s)(vii) of Cornerstone’s Disclosure Schedule, the Company real property owned by Cornerstone or any of its Subsidiaries (“Leased Real Property”). Each A) is occupied under a valid certificate of occupancy or similar permit, (B) the Company Transaction will not require the issuance of any new or amended certificate of occupancy and, (C) to Cornerstone’s Knowledge, there are no facts that would prevent any such property from being occupied and used by Plumas Bank after the Closing in the same manner as occupied by Cornerstone immediately prior to the Closing.
(viii) To Cornerstone’s Knowledge, (x) all improvements on the real property owned by Cornerstone or any of its Subsidiaries has (i) good are wholly within the lot limits of such real property and marketable title in fee simple to all Owned Real Property do not encroach on any adjoining premises or easement or similar property right benefiting such real property, and (iiy) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property there are no encroachments on any real property owned by Cornerstone or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse easement of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, right or benefit appurtenant thereto by any improvements located on any adjoining property which is detract from the subject of Section 4.19use therefrom.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Plumas Bancorp), Agreement and Plan of Merger and Reorganization (Plumas Bancorp)
Properties. (a) The Except to the extent not material to the Company, the Company Subsidiaries and the Nonprofit Organizations taken as a whole and as could not reasonably be expected to prevent, materially impair or one of its Subsidiaries has good and valid title to, or in materially delay the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business consummation of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property transactions contemplated by this Agreement, in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do noteach case, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).:
(ba) Section 4.18(b4.16(a) of the Company Disclosure Letter sets forth Schedule contains a true and complete list of all real property owned by the Company, the Company or any of its Subsidiaries and the Nonprofit Organizations (collectively, the “Owned Real Property”) and for each parcel of Real Property, contains a correct street address, if available and if not available, a general description, of such Real Property. Copies of all title reports or policies, legal descriptions, deeds, land patents, grants, surveys, geotechnical and other engineering reports and studies, environmental reports, property leased for tax bills and notices of assessment, Encumbrances and other current or historical documents describing or relating to the benefit Real Property have previously been made available to Acquiror. Without limiting the foregoing, “Real Property” consists of approximately 54,500 to 57,000 acres of land that is currently owned by the Company, of which approximately 46,430 acres formerly constituted a portion of the real property owned by the community land grant corporation known as the “Town of Atrisco, New Mexico”, which was the successor to the Spanish community land grant commonly known as the “Atrisco Land Grant”.
(b) Except as set forth on Section 4.16 of the Company Disclosure Schedule, none of the Company, the Company Subsidiaries nor the Nonprofit Organization lease, sublease, or license any real property from any Person. Section 4.16(b) of its Subsidiaries the Company Disclosure Schedule sets forth the addresses, if available, or if not available, a general description, of each parcel of the Real Property leased, subleased, licensed or otherwise occupied (whether as tenant, subtenant or pursuant to other occupancy arrangements) to or by any Person other than the Company, a Company Subsidiary or a Nonprofit Organization (collectively, including the improvements thereon, the “Leased Real Property”), and a true, correct and complete list of all agreements (including the date and the name of the parties to such agreements and a complete description of the terms of any unwritten leases) pertaining to the Leased Real Property (each a “Real Property Lease”). Each True and complete copies of each of the Real Property Leases that has not been terminated or expired as of the date hereof and any terminated or expired Real Property Leases under which the Company, a Company Subsidiary or a Nonprofit Organization may have any potential liability obligation have been made available to Acquiror.
(c) Except as set forth on Section 4.16 of the Company and its Disclosure Schedule, each of the Company, the Company Subsidiaries or the Nonprofit Organizations, as applicable, has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens Encumbrances, except Permitted Liens. No parcel Encumbrances.
(d) Except for the Leased Real Property, none of Owned Real Property or Leased the Real Property is subject to any governmental decree lease, sublease, license or order other agreement granting to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, other Person any right to the knowledge use, occupancy or enjoyment of such Real Property or any part thereof.
(e) Except as set forth on Section 4.16 of the CompanyCompany Disclosure Schedule, has any such condemnation, expropriation or taking been proposed. All leases of Leased each Real Property and all amendments and modifications thereto are Lease is in full force and effecteffect and is valid and enforceable in accordance with its terms, and there exists is no default under any such lease Real Property Lease either by the Company, any of its the Company Subsidiaries or any other the Nonprofit Organizations party thereto, nor any event whichas applicable, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, by any other party thereto, and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a default by the Company, the Company Subsidiaries or the Nonprofit Organizations thereunder.
(f) Except as set forth on Section 4.16 of the Company Disclosure Schedule, there does not exist any pending or, to the knowledge of the Company, threatened condemnation or eminent domain proceedings that affect any Real Property, and neither the Company nor the Company Subsidiaries or Nonprofit Organizations have received any written notice of the intention of any Governmental Authority or other Person to take or use any Real Property.
(g) The improvements constructed on the Real Property (including the Leased Real Property) are (i) insured by commercial property insurance for replacement costs, subject to self retained limits, and by commercial general liability insurance to the extent and in a manner customary in the industry for commercial general liability coverage, subject to self retained limits; and (ii) in good operating condition and repair, subject to ordinary wear and tear.
(h) The improvements constructed on the Real Property by (including the Company or any of its Subsidiaries Leased Real Property) are supplied with all utilities, including water, sewage disposal, electricity, gas, telephone and other services necessary for the current or contemplated use operation of such real property. To improvements as currently operated, and, to the knowledge of the Company, there are is no material latent defects condition which would reasonably be expected to result in the termination of the present access from any improvements to such utility services.
(i) Except for the two oil and gas leases identified in Section 4.11(xv) of the Company Disclosure Schedule, the Company is not currently engaged in, and has not granted any Person any permits, interest, license, lease or material adverse physical conditions affecting other rights with respect to, oil, natural gas or other mineral rights anywhere on the Owned Real Property and neither the Company nor any other Person is engaged in any drilling or Leased other exploration activities with respect thereto.
(j) Except as disclosed in Section 4.16 of the Company Disclosure Schedule, the Company has no knowledge that there are any sites of historical or archeological importance on the Real Property.
(k) Each of the Company, the Company Subsidiaries and the Nonprofit Organizations owns or leases all tangible assets necessary or sufficient for the conduct of its business as presently conducted, which tangible assets are reflected in the Balance Sheet (other than those disposed of in the Ordinary Course of Business consistent with past practices). All plants, warehouses, distribution centers, structures The tangible assets are in good and other buildings on the Owned Real Property or Leased Real Property are adequately maintained serviceable condition and repair in all material respects (subject to normal wear and tear) and are in good operating condition and repair generally suitable for the requirements of the business purposes for which they presently are used.
(l) Except as disclosed in Section 4.16 of the Company and its Subsidiaries as currently conducted.
(d) Each of Disclosure Schedule, the Company and its Subsidiaries has complied no knowledge that any improvement district or other similar entity with taxing or assessment powers is planned that would include the terms of all leases to which it is a partyReal Property, and all such leases there are in full force and effect, no assessment liens against the Real Property except for any such noncompliance or failure to as may be in full force and effect that, individually or disclosed in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19Title Report.
Appears in 2 contracts
Sources: Merger Agreement (Westland Development Co Inc), Merger Agreement (Westland Development Co Inc)
Properties. (a) The Each of the Company or one of and its Subsidiaries has good and valid marketable title to, or in the case of leased property and leased tangible assets, a valid leasehold interest interests in, all properties and assets purported to be owned or leased by it, respectively, in the Company’s annual report on Form 10-K for the year ended December 31, 2010, except for such properties and assets as are no longer used or useful in the conduct of its assets constituting personal property (excluding, for purposes businesses or as have been disposed of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property business, and except for defects in the nature of zoning restrictionstitle, easements, rights of way, encroachments, restrictive covenants, covenants and other similar rights encumbrances or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do notimpediments that, individually or in the aggregate, impair present do not and will not materially interfere with its ability to conduct its business operations at as currently conducted. All such propertiesassets and properties are free and clear of all Liens, other than Permitted Liens.
(ivb) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business Each of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)has complied, in all material respects, with the terms of all leases, subleases, easements, licenses and other occupancy agreements to which it is a party and under which it is in occupancy, and all such agreements are in full force and effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such agreements.
(bc) The assets, properties and rights owned or leased by the Company and its Subsidiaries comprise all the assets, properties and rights utilized by the Company or any of its Subsidiaries in the operation of their respective businesses as presently conducted, and, in the aggregate, are sufficient to permit the Company and its Subsidiaries to operate their respective businesses as presently conducted.
(d) All items of operating equipment owned or leased by the Company and its Subsidiaries are in a state of repair so as to be adequate, in all material respects, for operations in the areas in which they are operated.
(e) Section 4.18(b5.15(e) of the Company Disclosure Letter sets forth a true and complete list of all real property, facilities, office space and similar property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real PropertySubsidiaries, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied together with the terms physical address of all leases to which it is a party, and all primary use for each such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Merger Agreement (Dawson Geophysical Co), Merger Agreement (TGC Industries Inc)
Properties. (a) The Company Except for Permitted Encumbrances and immaterial property rights terminated or one disposed of its Subsidiaries has good and valid title toafter September 30, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising 2015 in the ordinary course of business of business, the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property the real properties (other than the Leases and (iiEasements) good leasehold title to all Leased Real Property, listed on Section 4.11(a)(i) of the Company Disclosure Schedule or otherwise reflected in each casethe Financial Statements, free and clear of all Liens Encumbrances other than Permitted Encumbrances, (ii) a valid, binding and enforceable leasehold interest in each of the leased properties used by the Company in the conduct of the business as conducted by the Company as of the date hereof (the “Leases”), free and clear of all Encumbrances other than Permitted Encumbrances, and all such Leases are listed on Section 4.11(a)(ii) of the Company Disclosure Schedule, (iii) a valid, binding and enforceable interest in each of the surface site properties used by the Company in the conduct of the business as conducted by the Company as of the date hereof pursuant to the agreements listed on Section 4.11(a)(iii) of the Company Disclosure Schedule (the “Surface Site Grants”) free and clear of all Encumbrances other than Permitted Encumbrances and (iv) good title to the material owned personal property, structures, buildings, fixtures, equipment, pipelines, and gathering and processing systems that are reflected in the Financial Statements or otherwise comprising a part of the Company Systems, free and clear of all Encumbrances other than Permitted Encumbrances.
(b) The Company has such title, rights or interest in or to all Easements as are necessary for (i) the Company to operate the Company Systems substantially as operated on the date hereof, except Permitted Liensfor imperfections (including immaterial defects and irregularities) as would reasonably be anticipated to exist, based on industry practices, in a pipeline system of the size, age, location and other characteristics of the Company Systems and (ii) the completion of the construction of the Union Pipeline. No parcel True and correct copies of Owned all such Easements have been made available to Buyer. Other than gaps listed on Section 4.11(b) of the Company Disclosure Schedule, there are no gaps in the Easements held by the Company for the Company Systems or the Union Pipeline. The Company has not received any written notice of any claim asserting the existence of a Title Defect in connection with any Easement held by the Company.
(c) There exist no material defaults under any Real Property or Leased Real Property Instrument to which the Company is subject a party with respect to any governmental decree real property (including any Easements and Surface Site Grants) held or order to be sold or is being condemned, expropriated or otherwise taken owned by any public authority with or without payment of compensation therefor, northe Company or, to the knowledge Knowledge of the Company, has any other Person that is a party to such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effectInstruments, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, has occurred that with notice or lapse of time or both, both would constitute a default thereunder under any such Real Property Instrument by the Company or, to the Knowledge of the Company, any other Person who is a party to such Real Property Instrument, in each case that would materially interfere with, or materially increase the cost of, the construction and/or operation of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming Company Systems as of the date hereof.
(d) The real properties owned by the Company (all consents, approvals and authorizations listed of which are set forth in Section 4.5 4.11(a)(i) of the Company Disclosure Letter relating Schedule), the Leases (all of which are set forth in Section 4.11(a)(ii) of the Company Disclosure Schedule) and the Easements and Surface Site Grants held by the Company constitute all of the real property used for the conduct of the business, in all material respects, of the Company Systems as conducted by the Company on the date hereof. The personal properties owned by the Company to any Leased Real Property have been obtainedconduct the operations of the Company Systems constitute all of the personal property used for the conduct of the business, in all leases material respects, of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective TimeCompany as conducted by it on the date hereof or the operation of the Company Systems as operated by the Company as of the date hereof.
(ce) There are no contractual assessments against the Easements or legal restrictions that preclude or materially restrict Surface Site Grants held by the ability to use any Owned Real Property orCompany for public improvements and there is no pending and, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge Knowledge of the Company, there are is no material latent defects or material adverse physical conditions affecting threatened, condemnation of any real property by any Government Entity that would materially interfere with the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements conduct of the business of the Company and its Subsidiaries as currently conductedconducted or the operation of the Company Systems as operated by the Company as of the date hereof.
(df) Each The Company Systems (and the personal property, structures, buildings, fixtures, equipment, pipelines, and gathering and processing systems that are part of the Company Systems) have been maintained, to the Knowledge of the Company, consistent with industry standards and its Subsidiaries has complied with the terms of all leases to which it is a partyare in good working order and condition (ordinary wear and tear excepted), and all such leases are in full force and effectsufficient, except for any such noncompliance or failure 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 Material Adverse Effect. Each operation of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in Systems as operated by the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is Company as of the subject of Section 4.19date hereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (EnLink Midstream Partners, LP), Securities Purchase Agreement
Properties. (a) The Company For purposes of this Agreement, "Pinnacle Permitted Liens" means (i) mechanics', carriers', workers', repairers', materialmen's, warehousemen's and other similar liens arising or one incurred in the Ordinary Course of its Business and such Liens as are being contested by the Companies and the Subsidiaries has in good faith, (ii) Liens for current Taxes not yet due or payable or Taxes being contested in good faith, (iii) any covenants, conditions, restrictions, reservations, rights, Liens, easements, encumbrances, encroachments and valid other matters affecting title which are shown as exceptions on the Companies' and the Subsidiaries' title insurance policies and/or title commitments or reports which have been made available to the Investors, (iv) any Liens, whether monetary or non-monetary, or other covenants, conditions, restrictions, reservations, rights, easements, encumbrances, encroachments and other matters affecting title which would not in the aggregate, be reasonably expected to interfere with the operations of the Companies or their Subsidiaries or affect their use of the Pinnacle Real Property, (v) any Liens or Encumbrances approved by the Bankruptcy Court, including, without limitation, Liens granted pursuant to a cash collateral and/or debtor-in-possession financing order and Liens granted as adequate protection; and (vi) Liens and Encumbrances granted pursuant to any forbearance agreements, or amendments thereto, entered into with respect to the Amended Credit Facility. "Pinnacle Leases" means the real property leases, subleases, licenses and use or occupancy agreements pursuant to which the Companies or any of the Subsidiaries is the lessee, sublessee or licensee, of real property other than the Pinnacle Owned Real Property, necessary for the conduct of, or otherwise material to, the business of the Companies and the Subsidiaries as it is currently conducted. "Pinnacle Leased Real Property" means all interests in real property pursuant to the Pinnacle Leases. "Pinnacle Owned Real Property" means the real property owned in fee by the Companies and the Subsidiaries necessary for the conduct of, or otherwise material to, the business of the Companies and the Subsidiaries as it is currently conducted. "Pinnacle Real Property" means, collectively, the Pinnacle Owned Real Property and the Pinnacle Leased Real Property. Except as disclosed in Section 3.17(a) of the Companies' Disclosure Schedule, or in the case title insurance policies relating to the Pinnacle Real Property, each of leased property the Companies and leased tangible assetsthe Subsidiaries have good, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), title to the Pinnacle Real Property free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested Liens, in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, each case except Pinnacle Permitted Liens and other imperfections for Liens which do not materially adversely affect the Companies' use of title that do not, individually or such Pinnacle Real Property. Except as set forth in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b3.17(a) of the Company Companies' Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the CompanySchedule, there are no material latent defects or material adverse physical conditions affecting outstanding contracts for the Owned Real Property or Leased sale of any of the Pinnacle Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained Except as set forth in all material respects and are in good operating condition and repair for the requirements Section 3.17(a) of the business Companies' Disclosure Schedule, to the Knowledge of the Company and its Subsidiaries Companies, there are no outstanding consents which have not yet been obtained by the Companies or the Subsidiaries, as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.applicable,
Appears in 2 contracts
Sources: Securities Purchase Agreement (Global Signal Inc), Securities Purchase Agreement (Pinnacle Holdings Inc)
Properties. (a) The Company or one of its Subsidiaries has Sellers and Sold Companies, as applicable, have good and valid marketable title to, or in the case of leased personal property and leased tangible assets, a have valid leasehold interest interests in, all of its assets constituting personal property (excludingwhether tangible or intangible), including Equipment, Inventory and Receivables, used in the Business and reflected on the Reference Balance Sheet or acquired after the Reference Balance Sheet Date (the “Personal Property”), except for purposes properties and assets sold since the Reference Balance Sheet Date in the ordinary course of business consistent with past practices and, since the date of this sentenceAgreement, assets held under leases)permitted pursuant to the terms hereof. None of such Personal Property is subject to any Liens, free and clear of all Liens other than Permitted Liens. As used herein, “Permitted Liens” means: (i) statutory ad valorem Liens for Taxes that are not yet due; (ii) Liens imposed by law, such as carriers’, warehousemen’s and real estate mechanics’ liens and other similar liens arising in the ordinary course of business; (iii) Liens arising out of pledges or deposits under workers’ compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation; (iv) Liens securing the performance of bids, tenders, contracts (other than for current taxes the repayment of borrowed money), statutory obligations and assessments surety bonds; (v) Liens in the nature of zoning restrictions, easements and rights or restrictions of record on the use of real property which do not yet past due materially detract from its value or impair its use; (vi) Liens arising by contract or by operation of law in favor of the amount owner or validity sublessor of leased premises and confined to the property rented; (vii) to the extent set forth on Schedule 3.08, Liens arising from any litigation or proceeding which is being contested in good faith by appropriate proceedings, (ii) mechanics’provided, workmen’showever, repairmen’s, landlord’s, warehousemen’s, carriers’ that no execution or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documentslevy has been made; and (vviii) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings disclosed on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conductedReference Balance Sheet.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Asset and Stock Purchase Agreement (Teradyne Inc), Asset and Stock Purchase Agreement (Amphenol Corp /De/)
Properties. (a) The Company or one Except as set forth on Schedule 7.13, the Borrower and each of its Subsidiaries has have good and valid title toto all material properties owned in fee and all material properties leased by them, including all property reflected in the balance sheet referred to in Section 7.05(a) and in the pro forma balance sheet referred to in Section 5.14 (except as sold or otherwise disposed of since the date of such balance sheet in the ordinary course of business or in accordance with the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes terms of this sentence, assets held under leasesAgreement), free and clear of all Liens Liens, other than Liens which are (x) in the case of property other than Real Property, Permitted Liens, (y) in the case of Mortgaged Property, Permitted Encumbrances and Liens permitted by the applicable Mortgage and (z) in the case of Leased Properties, Liens permitted by the Collateral Assignment of Leases or Collateral Assignment of Location Leases, as the case may be. On and as of the Effective Date, all of the Real Properties of each of the Borrower and its Subsidiaries (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or owned in fee are listed on Schedule 7.13 under the amount or validity of which is being contested heading "Fee Real Properties" (such Fee Real Properties, together with all Real Properties hereafter acquired in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned fee by the Company or Borrower and/or any of its Subsidiaries (“Owned Real Subsidiaries, the "Fee Properties"; each, a "Fee Property”") and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all leased by it are (A) in the case of the Principal Leases, listed on Schedule 7.13 under the heading "Leased Real Property, in each case, free Properties" and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment the provisions of compensation therefor, nor, the Collateral Assignment of Leases and (B) in the case of the Location Leases described in and subject to the knowledge provisions of the CompanyCollateral Assignment of Location Leases (such leased Real Properties, has any such condemnation, expropriation or taking been proposed. All leases of Leased together with all Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease Properties hereafter leased by the Company, Borrower and/or any of its Subsidiaries or any other party theretoSubsidiaries, nor any event whichthe "Leased Properties"; each, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any "Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective TimeProperty").
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Credit Agreement (Appliance Warehouse of America Inc), Credit Agreement (Coinmach Corp)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b3.8(a)(i) of the Acquired Company Disclosure Letter Schedule sets forth a true and complete list of all real of the material machinery, equipment, vehicles and other tangible personal property owned or leased by the Acquired Companies, all Real Property Interests owned by the Company or any of its Subsidiaries Acquired Companies (the “Owned Real PropertyProperty Interests”) and all property Real Property Interests leased for or subleased by the benefit of Acquired Companies (the Company or any of its Subsidiaries (“Leased Real PropertyProperty Interests”). Each of the Company and its Subsidiaries has (i) good and marketable The Acquired Companies, individually or together, have indefeasible title in fee simple to all Owned Real Property Interests, valid leasehold interests in the case of Leased Real Property Interests, and (ii) good and marketable title or valid leasehold title interests in and to all Leased Real Propertyother properties, in each casecase listed in Section 3.8(a)(i) of the Acquired Company Disclosure Schedule or otherwise owned or held by them (all such interests and properties, including those listed in Section 3.8(a)(i) of the Acquired Company Disclosure Schedule, collectively, the “Assets”), in each case free and clear of all Liens Title Defects. To Seller’s Knowledge, there are no assessments against the Assets for public improvements. As of the date of this Agreement, there has been no actual or, to Seller’s
(b) The Assets constitute all of the assets, rights, interests and properties, tangible or intangible, real or personal, that are used or necessary for use in connection with the operation of the Business consistent with past practice and as currently operated or conducted by the Acquired Companies. The personal property owned or leased by the Acquired Companies is sufficient to enable them to conduct their Businesses as currently operated or conducted. There are no preferential or similar rights to purchase any of the Assets except Permitted Liens. as set forth in Section 3.8(b) of the Acquired Company Disclosure Schedule.
(c) No parcel Seller Party nor any Acquired Company has received any notice of Owned any adverse claim to title to any Assets or has received any notice of default under or termination of, or is in default under, the terms of any leases, subleases, Easements or rights of way with respect to any Assets that constitute Real Property Interests, in any such case that might result in an impairment or Leased Real Property is subject loss of title to any governmental decree such Assets or order to be sold the value thereof or is being condemned, expropriated that has or otherwise taken by any public authority with would hinder or without payment of compensation therefor, nor, to impede the knowledge operation of the Company, has Assets of any such condemnation, expropriation Acquired Company or taking been proposed. All leases adversely affect the ability of Leased Real Property the Acquired Companies to own and all amendments operate their Assets from and modifications thereto are after the Closing in full force and effect, and there exists no default under any such lease the ordinary course of business as conducted by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party theretoAcquired Companies prior to Closing, except asfor such adverse claims, defaults or terminations, individually or in the aggregate, has not had and that would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings Effect on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conductedAcquired Companies.
(d) Each The Assets that are tangible personal property are in good operating and working order, repair and condition, subject to ordinary wear and tear.
(e) True and complete copies of all (i) deeds and other instruments by which each Acquired Company acquired the Owned Real Property Interests owned by it, (ii) existing surveys, title insurance policies, title insurance abstracts and other evidence of title of the Owned Real Property Interests in the possession of such Acquired Company or any Seller Party and its Subsidiaries has complied with (iii) leases and subleases covering the terms Leased Real Property Interests or other leased or subleased Assets have been made available to the General Partner and Buyer.
(f) Section 3.8(f) of the Acquired Company Disclosure Schedule contains a true and complete list of all leases of the leases, subleases, assignments thereof and other instruments, agreements and arrangements pursuant to which it is a partyany Acquired Company leases, sublets or otherwise demises any real property, whether surface, mineral or both, to any other Person (all said instruments, agreements and arrangements being hereinafter referred to as “Out Leases” and such real property as the “Out Leased Real Property Interests”). True and complete copies of all of the Out Leases (including all amendments thereto and all such leases instruments in any way modifying any thereof) have heretofore been made available to the General Partner and Buyer. All of the Out Leases are in full force valid and effect, except for any such noncompliance or failure to be in full force and effect thatin accordance with their terms. There are no existing defaults by any party under any of the Out Leases, nor, to Seller’s Knowledge, has any event occurred which, with notice or the passage of time or both, would constitute a default by any party under any of the Out Leases.
(g) Except as set forth in Schedule 3.8(g) of the Acquired Company Disclosure Schedule, none of the Acquired Companies nor any Seller Party has received any written notice or, to Seller’s Knowledge, any other communication of claims that any lessee of any Acquired Company or any contract miner for any such lessee has mined any coal that it did not have the right to mine or mined any coal in such reckless and imprudent fashion as to give rise to any claims for loss, waste or trespass; and, to Seller’s Knowledge, no facts exist upon which a claim could be based, except for claims, individually or in the aggregate, has not had and that would not reasonably be expected to have a Material Adverse Effect. Each Effect on the Acquired Companies.
(h) Seller has made available to the General Partner and Buyer the most recent complete and correct version of each of the following items to the extent such items are (i) in the possession or under the control of any Acquired Company or Seller Party, (ii) relate to or affect the Real Property Interests or the Out Leased Real Property Interests, including the coal reserves, coal ownership, mining conditions, mines, mining plans, property Tax bills and filings of property Tax forms of each Acquired Company and its Subsidiaries enjoys peaceful (iii) relevant to the conduct of the Business: geological data, reserve data, existing mine maps, surveys, core hole logs and undisturbed possession under associated data, coal measurements, coal samples, lithologic data, coal reserve calculations or reports, washability analyses or reports, mine plans, mining permit applications and supporting data, engineering studies and all such leasesother books and records, except for any such failure to do so thatinformation, individually or in the aggregatemaps, has not had reports and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19data.
Appears in 2 contracts
Sources: Contribution Agreement (Natural Resource Partners Lp), Second Contribution Agreement (Natural Resource Partners Lp)
Properties. (a) Section 4.14(a) of the Company Disclosure Letter contains a true and complete list of all material real property owned by the Company and its Subsidiaries (the “Company Owned Real Property”). The Company or one and each of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets respect to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) Subsidiaries, insurable fee simple interest in, or valid license or leasehold interests in, all their respective properties and assets, in all property leased material respects, except for the benefit of Permitted Liens. All such properties and assets, other than properties and assets in which the Company or any of its Subsidiaries has a license or leasehold interest, are free and clear of all conditions, encroachments, easements, rights of way, restrictions and Liens, except for Permitted Liens. Except as set forth on Section 4.14(a) of the Company Disclosure Letter, the Company has furnished or made available to Parent prior to the date hereof copies of each deed for parcel of the Company Owned Real Property and all title insurance policies relating to the Company Owned Real Property in the possession or control of the Company.
(b) The chart attached as Section 4.14(b) of the Company Disclosure Letter identifies each of the leases, site leases, subleases, and occupancy agreements in which either of the Company or its Subsidiaries has a leasehold interest, license or similar occupancy rights, whether as lessor or lessee (together with any material amendments thereto, each, a “Company Lease” and, collectively, the “Company Leases”; the property covered by Company Leases under which either the Company or its Subsidiaries is a lessee is referred to herein as the “Company Leased Real Property”; the Company Leased Real Property, together with the Company Owned Real Property, collectively being the “Company Property”). Each such Company Lease is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Propertyor a Subsidiary of the Company, in each caseas the case may be, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, norand, to the knowledge of the Company, of the other party or parties thereto, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting creditors generally or by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at Law), and the Company and each of its Subsidiaries has any complied with the terms of all Company Leases, except for such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are failures to be in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries effect or any other party thereto, nor any event which, with notice or lapse of time or both, to be in compliance that would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except asnot, individually or in the aggregate, has not had and be reasonably expected to have a Company Material Adverse Effect. The Company or each respective Subsidiary of the Company is in possession of the properties or assets purported to be leased under its respective leases, except as would not reasonably be expected to have a Company Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual The Company has provided to Parent true and complete in all material respects excerpts of all Company Leases under which the Company or legal its Subsidiaries is a lessee that contain (i) radius restrictions that preclude or materially restrict non-compete provisions, (ii) restrictions on assignment, subletting or other transfer or (iii) restrictions on changes in the ability direct or indirect ownership of interests of the tenant.
(d) None of the Company nor its Subsidiaries, nor their respective Affiliates, officers, directors, employees or consultants has leased, subleased, assigned, licensed or otherwise granted to any Person the right to use or occupy any material portion of the Company Property. Except for Permitted Liens, none of the Company Owned Real Property oris subject to any option or other agreement granting to any Person or entity any right to obtain title to all or any portion of such property.
(e) Except as would not, individually or in the aggregate, be reasonably expected to have a Company Material Adverse Effect, to the knowledge of the Company, Leased Real Property by all buildings, structures, fixtures, building systems and equipment, and all components that are part of the Company or any Property are in material compliance with all applicable Laws and are in good operating condition in all material respects and in a state of its Subsidiaries good and working maintenance and repair in all material respects, and are reasonably adequate and reasonably suitable for the current or contemplated use operation of such real propertythe Company’s business. To the knowledge of the Company, there are is no pending or written threat of condemnation or similar action affecting any of the material latent defects or material adverse physical conditions affecting Company Property.
(f) Section 4.14(f) of the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures Company Disclosure Letter sets forth the true and other buildings on the Owned Real Property or Leased Real Property are adequately maintained correct in all material respects aging and are in good operating condition and repair for the requirements valued cost of the business Company’s retail inventory. Since February 2, 2013 through the date of this Agreement, the Company has purchased retail inventory in a manner consistent in all material respects with the ordinary past practices of the Company and its Subsidiaries as currently conductedCompany.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Merger Agreement (Bank Jos a Clothiers Inc /De/), Merger Agreement (Mens Wearhouse Inc)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business None of the Company or such any Company Subsidiary consistent with past practice (iii) encumbrances on owns any real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)property.
(b) Section 4.18(b4.15(b) of the Company Disclosure Letter sets forth contains, as of the date of this Agreement, a true and complete list of the names of the fee owners, landlords, tenants, subtenants and sub-subtenants, as applicable, of all real property owned by which is leased, subleased, sub-subleased, or licensed to, or otherwise occupied by, the Company or any of and its Subsidiaries Subsidiaries, as applicable (“Owned Real Property”) and all property leased for collectively, including the benefit of Improvements thereon, the Company or any of its Subsidiaries (“Leased Real Property”). Each , and sets forth a description of any and all leases, subleases, sub-subleases, licenses and purchase options to which the Company or any Company Subsidiary is a party with respect thereto (collectively, the “Real Estate Leases”). True and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear complete copies of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemnedEstate Leases (including all modifications, expropriated or otherwise taken by any public authority with or without payment of compensation thereforamendments, norsupplements, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property waivers and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party side letters thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property ) have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Timemade available to Parent.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge Knowledge of the Company, there are no material latent defects facts or material adverse physical conditions affecting any of the Owned Real Property or Leased Real Property. All plantsbuildings, warehousesstructures, distribution centers, structures fixtures and other buildings improvements (the “Improvements”) located on the Owned Real Property or Leased Real Property are adequately maintained that, in all material respects and are in good operating condition and repair for the requirements aggregate, would reasonably be expected to materially interfere with the Company and/or its Subsidiaries current use, occupancy or operation of the business of the Company and its Subsidiaries Leased Real Property taken as currently conducteda whole.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it Real Estate Lease (i) is a party, and all such leases are in full force and effect, except for any such noncompliance or failure to be in full force and effect thatand constitutes the valid and legally binding obligation of the Company or the applicable Company Subsidiary which is a party thereto, individually as applicable, enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of equity, (ii) has not been amended or modified in any material respect except as reflected in the aggregatemodifications, 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 had and would not reasonably be expected to have a Material Adverse Effect. Each been assigned in any manner by the Company or any of the applicable Company Subsidiaries.
(e) Neither the Company nor any of the Company and its Subsidiaries enjoys peaceful and undisturbed possession has received a notice of default under all such leases, except for any such failure to do so that, individually or in Real Estate Lease during the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, last six (6) months which is the subject of Section 4.19remains uncured.
Appears in 2 contracts
Sources: Merger Agreement (New Residential Investment Corp.), Merger Agreement (Home Loan Servicing Solutions, Ltd.)
Properties. (a) The Company or one of its and the Company Subsidiaries has have good and valid title to, or in the case of leased property and leased tangible assets, a assets have valid leasehold interest interests in, all property and assets (whether real, personal, tangible or intangible) that are necessary for the conduct of its their businesses as currently conducted, including all such property and assets constituting personal property (excludingreflected on the Balance Sheet or acquired after the Balance Sheet Date, except for purposes of this sentence, properties and assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or sold since the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising Balance Sheet Date in the ordinary course of business or where the failure to have such good title or valid leasehold interests would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. None of such property or assets is subject to any Lien, except:
(i) Liens and other matters described in or by reference in Schedule 3.14;
(ii) Liens disclosed on the Company Balance Sheet or such Subsidiary consistent with past practice in the notes thereto or securing liabilities reflected on the Balance Sheet or in the notes thereto;
(iii) encumbrances Liens for taxes, assessments and similar charges that are not yet due and payable or are being contested in good faith and for which adequate reserves have been made on real property in the nature of zoning restrictionsBalance Sheet;
(iv) mechanic’s, easementsmaterialman’s, rights of waycarrier’s, encroachments, restrictive covenants, repairer’s and other similar rights Liens arising or restrictions that were not incurred in connection with the borrowing ordinary course of money business or that are not yet due and payable or are being contested in good faith and for which adequate reserves have been made on the obtaining Balance Sheet;
(v) in the case of advances leased or credit subleased properties and assets, Liens and other matters affecting the lessors’ or prior lessors’ interests in such properties and assets; or
(vi) other Liens and matters that do not, individually or in the aggregate, impair present business operations at such propertiesmaterially adversely affect the current use or value (and, (iv) existing Liens disclosed in the Company’s consolidated balance sheet case of owned property or assets, the ownership) of such property or asset as at December 31, 2010 (or the notes thereto) included in currently used by the Company SEC Documents; and or any Company Subsidiary (vparagraphs (i)-(vi) any such matters of recordthis Section 3.14 are, Liens and other imperfections of title that do notcollectively, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true All material tangible real and complete list of all real personal property owned used by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any Subsidiaries in the conduct of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto their businesses are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in sufficiently good operating condition and repair for repair, considering age and service thereof and subject to ordinary wear and tear, to permit their continued use in connection with the requirements conduct of the business of the Company and its Subsidiaries such businesses as currently conducted.
(dc) Each The Company has made available to Buyer a list of all real property used or held for use by the Company and its the Company Subsidiaries has complied with that the terms of all leases to which it is a partyCompany or any Company Subsidiary owns, leases, operates or subleases and all such leases title insurance policies and surveys with respect thereto held by the Company or any Company Subsidiary. There are in full force and effectno pending or, except for any such noncompliance or failure 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 Material Adverse Effect. Each Knowledge of the Company Company, threatened material condemnation proceedings, lawsuits or administrative actions relating to any material real property or other casualty materially affecting and its Subsidiaries enjoys peaceful and undisturbed possession under all such leasesadversely impairing the current use, except for any such failure to do so that, individually occupancy or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19value thereof.
Appears in 2 contracts
Sources: Merger Agreement (Mueller Water Products, Inc.), Merger Agreement (Walter Industries Inc /New/)
Properties. (a) The Company or one To the knowledge of XETA, XETA and each of its Subsidiaries has subsidiaries have good and valid marketable title to, or to all the properties and assets reflected in the case latest audited consolidated balance sheet included in the XETA SEC Reports as being owned by XETA or by any such subsidiary or acquired after the date thereof that are material to XETA’s business on a consolidated basis (except properties sold or otherwise disposed of leased property and leased tangible assets, a valid leasehold interest in, all since the date thereof in the ordinary course of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leasesbusiness), free and clear of all Liens other than Permitted Liens. “Permitted Liens” means (i) statutory ad valorem and real estate and other such Liens for current taxes and assessments not yet past due or as are set forth in Section 2.12(a) of the amount or validity of which is being contested in good faith by appropriate proceedingsXETA Schedule, (ii) mechanics’, carriers’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ ’s or similar other like Liens arising or incurred in the ordinary course of business for sums not yet due and payable, and which do not in the aggregate materially detract from the value of the Company or such Subsidiary consistent with past practice property and assets of XETA and its subsidiaries, (iii) encumbrances on real property Liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the nature ordinary course of zoning business, (iv) Liens for Taxes and other governmental charges that are not due and payable or are being contested in good faith through appropriate proceedings and for which adequate reserves have been made in accordance with GAAP on XETA’s most recent consolidated financial statements contained in the XETA SEC Reports, (v) recorded easements, covenants, restrictions, easements, rights of way, encroachmentszoning, restrictive covenants, building restrictions and other similar matters which do not impair the operation of the business of XETA and any of its subsidiaries as currently conducted, (vi) landlord’s or lessor’s Liens under leases to which the XETA or a XETA subsidiary is a party, (vii) non-exclusive licenses and other non-exclusive rights or restrictions that were not incurred in connection with the borrowing Intellectual Property granted in favor of money or the obtaining of advances or credit and that do not, individually or third parties pursuant to XETA Material Contracts in the aggregateordinary course of business, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (vviii) any such matters of record, Liens and other imperfections of title that or easements, rights-of-way, restrictions, encroachments and other similar charges and encumbrances, if any, which do not, secure indebtedness and do not individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements conduct of the business of the Company XETA and any of its Subsidiaries subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Merger Agreement (PAETEC Holding Corp.), Merger Agreement (Xeta Technologies Inc)
Properties. (a) The Company or one of Rook, together with its Subsidiaries has Subsidiaries, have in all material respects good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its the real properties and tangible assets constituting personal property (excludingi) reflected or disclosed in Rook’s Annual Report filed on Form 10-K for the fiscal year ended December 31, for purposes 2016 or (ii) acquired after December 31, 2016 (other than assets disposed of this sentencesince December 31, assets held under leases2016 in the Ordinary Course of business), free and clear of all Liens other than (iu) statutory ad valorem and real estate and other Liens for current taxes Taxes and assessments that are not yet past due or the amount or validity of which is for Taxes that are being contested in good faith by appropriate proceedingsproceedings and for which adequate reserves have been established in accordance with GAAP, (iiv) Liens securing Indebtedness reflected on the most recent consolidated balance sheet of Rook included in Rook SEC Documents filed with the SEC prior to the date of this Agreement or incurred by Rook or any of its Subsidiaries in the Ordinary Course of business since the date of such consolidated balance sheet, (w) Liens imposed or promulgated by Laws with respect to real property and improvements, including zoning regulations, which are not violated by the current use or occupancy of such real property, (x) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, ’s and carriers’ or similar Liens arising in the ordinary course Ordinary Course of business of the Company Rook or such Subsidiary consistent with past practice any of its Subsidiaries for amounts that are not due or payable, (iiiy) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, Liens and other similar rights imperfections of title or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and record that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and Rook or its Subsidiaries as currently conducted and (z) Liens set forth on Section 3.19(a) of the Rook Disclosure Letter (“Rook Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company Rook and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Rook Material Adverse Effect. Each of the Company Rook and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Rook Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Merger Agreement (Knight Transportation Inc), Merger Agreement (SWIFT TRANSPORTATION Co)
Properties. (ai) The Neither the Company or one nor any of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and owns any real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, property.
(ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in The real property listed on Schedule 3.2(h)(ii) (the ordinary course “Leased Real Property”) constitutes a complete and correct list of business all of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property leased, subleased, licensed, or otherwise used in the nature of zoning restrictionsany material respect, easements, rights of way, encroachments, restrictive covenants, and pursuant to other similar rights agreements or restrictions that were not incurred in connection with arrangements, by the borrowing of money or the obtaining of advances or credit Company and its Subsidiaries and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets significantly relate to which they relate in the business and operations of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(bSubsidiaries. Schedule 3.2(h)(ii) Section 4.18(b) of the Company Disclosure Letter also sets forth a true complete and complete correct list of all real property owned by leases, subleases, licenses or other rental arrangements pursuant to which the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or holds any of its Subsidiaries (“Leased Real PropertyProperty (individually, a “Lease” and collectively, the “Leases”). Each The Company has delivered or made available to Buyer accurate and complete copies of each of the Company and its Subsidiaries has (i) good and marketable title Leases. None of the Leases referenced in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Propertythe preceding sentence have been modified, assigned, changed, supplemented, amended, or mortgaged in each caseany material respect, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge extent that such modifications or other changes are disclosed on Schedule 3.2(h)(ii) or disclosed by the copies of the CompanyLeases delivered or made available to Buyer. With respect to each Lease, has any and except as otherwise specified on Schedule 3.2(h)(ii):
(A) such condemnation, expropriation or taking been proposed. All leases of Leased Real Property Lease is valid and all amendments and modifications thereto are is in full force and effect, subject to the application of any bankruptcy or creditors’ rights Laws and, if applicable, proper authorization and there exists no default under any execution of such lease Lease by the Company, any of its Subsidiaries or any other party thereto;
(B) none of the Leased Real Property has been subleased, nor any event whichlicensed, with notice assigned or lapse of time otherwise transferred or both, would constitute a default thereunder conveyed by the Company or its Subsidiaries, and to the Company’s Knowledge, any there are no Liens that affect the Leased Real Property as a result of its Subsidiaries the acts or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 omissions of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.or its Subsidiaries other than Permitted Liens;
(cC) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge Company’s Knowledge, neither the Company nor its Subsidiaries has received any written notice from any Governmental Authority that the use, occupancy, and operations of the Company, any Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of applicable Subsidiary is not in compliance with all applicable Laws and Licenses and Permits; and
(D) to the Company’s Knowledge, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of neither the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and nor its Subsidiaries has complied with received from any counterparty thereto or sent to any counterparty thereto written notice of any material default or alleged default in the terms performance of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure obligation to be in full force and effect that, individually performed or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession paid under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19Lease.
Appears in 2 contracts
Sources: Merger Agreement (SFX Entertainment, INC), Merger Agreement (SFX Entertainment, INC)
Properties. (a) The Company or one of its Subsidiaries Except as has good not had and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments would not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do notreasonably be expected to have, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in a Material Adverse Effect on the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries have good title to, or valid leasehold interests in, all property and assets reflected on the Company Balance Sheet or acquired after the Company Balance Sheet Date, except as currently conducted (“have been disposed of since the Company Balance Sheet Date in the ordinary course of business, in each case free and clear of all Liens, except Permitted Liens”).
(b) Section 4.18(b4.15(b)(i) of the Company Disclosure Letter Schedule sets forth a true complete and complete list correct list, as of the date hereof, of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, Except as has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure to be in full force and effect thathave, individually or in the aggregate, a Material Adverse Effect on the Company, the Company or a Subsidiary of the Company owns good and valid title to the Owned Real Property, free and clear of all Liens, other than Permitted Liens. There is no pending or threatened condemnation proceeding with respect to any of the Owned Real Property. Section 4.15(b)(ii) of the Company Disclosure Schedule sets forth a complete and correct list, as of the date hereof, of all Leases with annual base rent payments by the Company or any Subsidiary of the Company of $3,000,000 or more in 2023 or 2024, as applicable (each, a “Material Lease”), true and complete copies of which have been made available to Parent prior to the date hereof. Except as has not had and would not reasonably be expected to have a Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so thathave, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate Effect on the Company, (i) each Material Lease under which the Company or any of its Subsidiaries leases, subleases or licenses any real property is valid, with respect to intellectual propertythe Company and, which is to the subject knowledge of Section 4.19the Company, the other party, binding, and in full force and effect and enforceable in accordance with its terms (subject, with respect to enforceability, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity) and (ii) since January 1, 2021, neither the Company nor any of its Subsidiaries has received notice in writing alleging that it has breached, violated or defaulted under any Material Lease.
Appears in 2 contracts
Sources: Merger Agreement (Juniper Networks Inc), Merger Agreement (Hewlett Packard Enterprise Co)
Properties. (a) Neither the Company nor any of its Subsidiaries own any real property.
(b) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all in each parcel of real property leased by the Company and its assets constituting personal Subsidiaries (including the parcels of real property (excluding, for purposes listed in Section 3.18 of this sentence, assets held under leasesthe Company Disclosure Letter), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, ’s and carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice and (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, materially impair the continued ownership, use and or operation of the assets to which they relate in the business of by the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(bc) Section 4.18(b) Except to the extent disposed of in the Company Disclosure Letter sets forth a true and complete list ordinary course of all real property owned by business consistent with past practice, the Company or any one of its Subsidiaries (“Owned Real Property”) has good and all valid title to, or in the case of leased personal property, a valid leasehold interest in, each item of personal property leased for that is recorded or reflected as owned or leased, as the benefit of case may be, on the Company or any of its Subsidiaries (“Leased Real Property”). Each audited consolidated balance sheet of the Company and its Consolidated Subsidiaries has (i) good and marketable title as at December 31, 2010 included in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Propertythe Company SEC Documents, in each case, case free and clear of all Liens except other than Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 3.18 does not relate to intellectual property, which is the subject of Section 4.193.19.
Appears in 2 contracts
Sources: Merger Agreement (TomoTherapy Inc), Merger Agreement (Accuray Inc)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b4.15(a) of the Company Disclosure Letter sets forth contains a true and complete list of all real property owned by the Company or any Company Subsidiary (other than immaterial real property that is not currently used (or currently identified for future use) in connection with the operation of its Subsidiaries a grocery store, drug store and/or distribution center) (each, an “Owned Real Property,” and collectively, the “Owned Real Properties”).
(b) Section 4.15(b) of the Company Disclosure Letter contains a true and complete list of all real property leased for the benefit of or subleased (whether as tenant or subtenant) by the Company or any Company Subsidiary (other than immaterial real property that is not currently used (or currently identified for future use) in connection with the operation of its Subsidiaries a grocery store, drug store and/or distribution center) (each, including the improvements thereon, a “Leased Real Property,” and collectively, the “Leased Real Properties”). Each With respect to the Leased Real Properties and the Real Property Leases (as defined below), there are no non-disturbance agreements and declarations of covenants, restrictions, reciprocal and/or operating easements, development agreements, or agreements with municipal authorities with respect to zoning or planning, including amendments relating thereto, that would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Substantially accurate (to the Company’s Knowledge) summaries prepared in the ordinary course of business of the principal economic terms of each of the leases pursuant to which the Company leases (as a lessee) real property for the operation of a grocery or drug store, distribution center, or other material operation center, as such leases have been amended to date (each lease, including all amendments thereto, a “Real Property Lease”) have been made available to Parent.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company or one of the Company and its Subsidiaries has (i) good and marketable title in fee simple title to all Owned Real Property Properties and (ii) good valid leasehold title to estates in all Leased Real Property, in each case, Properties free and clear of all Liens except Permitted LiensEncumbrances. No parcel of Owned Real Property The Company or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge one of the Company, Company Subsidiaries has any such condemnation, expropriation or taking been proposed. All leases exclusive use and possession of each Leased Real Property and Owned Real Property, other than any use or occupancy rights granted to third-party owners, tenants or licensees pursuant to agreements with respect to such real property entered in the ordinary course of business (each agreement, including all amendments thereto, a “Third Party Use and modifications thereto are Occupancy Agreement”), none of which would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Real Property Lease and each Third Party Use and Occupancy Agreement is in full force and effecteffect and is valid and enforceable in accordance with its terms, and there exists is no material default under any such lease Real Property Lease or any Third Party Use and Occupancy Agreement either by the Company or the Company Subsidiaries party thereto or, to the Company’s Knowledge, any of its Subsidiaries or by any other party thereto, nor any and no event whichhas occurred that, with notice or the lapse of time or the giving of notice or both, would constitute a default thereunder by the Company, any of its Company or the Company Subsidiaries or any other party thereto, except asthereunder.
(e) Except as would not reasonably be expected to have, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There there are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property pending or, to the knowledge of the Company’s Knowledge, Leased Real Property by the Company threatened condemnation or eminent domain proceedings that affect any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and neither the Company nor the Company Subsidiaries have received any written notice of the intention of any Governmental Authority or other buildings on the Person to take any Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conductedProperty.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Merger Agreement (Albertsons Inc /De/), Merger Agreement (Supervalu Inc)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of Neither the Company or such nor any Company Subsidiary consistent with past practice (iii) encumbrances on owns any real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)property.
(b) Section 4.18(b5.15(b) of the Company Disclosure Letter sets forth contains, as of the date of this Agreement, a true and complete list of all real property owned that is leased, subleased, sub-subleased, or licensed to, or otherwise occupied by, the Company and the Company Subsidiaries, as applicable (such property, the “Leased Real Property”), and sets forth a list of any and all leases, subleases, sub-subleases, licenses, sublicenses and occupancy agreements and purchase options for the use of the Leased Real Property to which the Company or any Company Subsidiary is a party with respect thereto (collectively, including all modifications and amendments thereto, the “Real Estate Leases”). The Company and/or one of the Company Subsidiaries, as the case may be, have and own good, valid and subsisting leasehold interests in the Leased Real Property under each Real Estate Lease, subject to proper authorization and execution of such Real Estate Lease by the other party thereto and Permitted Liens, except in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of equity. True and complete copies of all Real Estate Leases have been made available to Parent.
(c) Each Real Estate Lease (i) is in full force and effect and a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of equity; (ii) has not been amended or modified in any material respect except as reflected in the modifications, amendments, supplements and side letters thereto made available to Parent; and (iii) except with respect to any Permitted Liens, has not been assigned in any manner by the Company or any of its Subsidiaries the applicable Company Subsidiaries.
(“Owned Real Property”d) and all property leased for the benefit There is no existing material default or event of default by the Company or any of its Subsidiaries (“Leased Real Property”). Each the Company Subsidiaries, or, to the Knowledge of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Company, any other party thereto, under any Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation thereforEstate Lease, nor, to the knowledge Knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, which with notice or lapse of time or both, both would constitute a material default thereunder by the Company, Company or any of its Subsidiaries Subsidiary (as applicable) or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any .
(e) The Leased Real Property have been obtained, constitutes all leases of the real property occupied or otherwise used by the Company and the Company Subsidiaries as of the date hereof. The Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained is in all material respects and are in good operating condition and repair in a state of good and working maintenance and repair, ordinary wear and tear excepted, and is adequate and suitable for its current uses and purposes. There are no physical conditions or defects on any part of the requirements Leased Real Property that would materially impair or would be reasonably expected to materially impair the continued operation of the business of the Company and its the Company Subsidiaries as currently conductedpresently conducted at such Leased Real Property.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Merger Agreement (Open Text Corp), Merger Agreement (Carbonite Inc)
Properties. (ai) The Company Section 3.1(o) of the Clearday Disclosure Letter sets forth a correct list of all real property owned or one of its Subsidiaries has good leased (as lessee) by Clearday or any Clearday Subsidiary (all such real property interests, together with all buildings, structures and valid title to, other improvements and fixtures located on or in the case of leased under such real property and leased tangible assetsall easements, a valid rights and other appurtenances to such real property, are individually referred to herein as an “Clearday Property” and collectively referred to herein as the “Clearday Properties”).
(ii) Clearday or the applicable Clearday Subsidiary owns fee simple title or leasehold interest intitle (as applicable) to each of the Clearday Properties, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases)in each case, free and clear of all Liens Liens, mortgages or deeds of trust, claims against title, charges that are Liens, security interests or other than encumbrances on title, rights of way, restrictive covenants, declarations or reservations of an interest in title (icollectively, “Encumbrances”), except for the following: (A) Encumbrances set forth Section 3.1(o) of the Clearday Disclosure Letter or relating to debt obligations reflected in the Company’s financial statements and the notes thereto (including with respect to debt obligations which are not consolidated), (B) Encumbrances that result from any statutory ad valorem and real estate and or other Liens for current taxes and Taxes or assessments that are not yet past due or delinquent or the amount or validity of which is being contested in good faith by appropriate proceedings; (C) any Material Contracts (only to the extent that the same encumbers or affects title to real property), or leases to third parties for the occupation of portions of the Clearday Properties by such third parties in the ordinary course of the business of Clearday, (iiD) Encumbrances imposed or promulgated by Law or any Governmental Entity, including zoning regulations, (E) Encumbrances disclosed on existing title policies made available to the Purchaser Parties prior to the date hereof, (F) any cashiers’, landlords’, workers’, mechanics’, carriers’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or ’s and materialmen’s liens and other similar Liens arising liens imposed by Law and incurred in the ordinary course of business business, and (G) any other Encumbrances, limitations or title defects of any kind, if any, that, individually or in the Company or such Subsidiary consistent with past practice aggregate, would not constitute a Clearday Material Adverse Effect.
(iii) encumbrances Clearday has made available to Purchaser all title insurance policies with respect to the Clearday Properties. To Clearday’s Knowledge, no material claim has been made under any such title insurance policy and each such title insurance policy is in full force and effect as of the date hereof.
(iv) No certificate, permit or license from any Governmental Entity having jurisdiction over any of the Clearday Properties or any agreement, easement or other right that is necessary to permit the lawful use and operation of the buildings and improvements on real property any of the Clearday Properties or that is necessary to permit the lawful use and operation of all parking areas, driveways, roads and other means of egress and ingress to and from any of the Clearday Properties has not been obtained and is not in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenantsfull force and effect, and other similar rights neither Clearday nor any Clearday Subsidiary has received written notice of any threat of modification or restrictions that were not incurred cancellation of any such certificate, permit or license, except for such notices, failures to obtain and to have in connection with the borrowing of money or the obtaining of advances or credit full force and that do effect, which would not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and constitute a Clearday Material Adverse Effect.
(v) Neither Clearday nor any such matters Clearday Subsidiary has received any written notice to the effect that (A) any condemnation or rezoning proceedings are pending or threatened with respect to any of recordthe Clearday Properties, Liens or (B) any zoning regulation or ordinance (including with respect to parking), board of fire underwriters rules, building, fire, health or other Law, code, ordinance, Order or regulation has been violated for any Clearday Property, which in the case of clauses (A) and other imperfections of title that do not(B) would, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)constitute a Clearday Material Adverse Effect.
(bvi) Section 4.18(b3.1(o) of the Company Clearday Disclosure Letter sets forth a true and complete list lists as of all real property owned by the Company date hereof each ground lease to which Clearday or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company Clearday Subsidiary is party, as lessee or any of its Subsidiaries (“Leased Real Property”)lessor. Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property such ground lease is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effecteffect and is valid, binding and there exists no default under any such lease by enforceable in accordance with its terms against the Companylessor or lessee thereunder, any as applicable, and, to the Knowledge of its Subsidiaries or any Clearday, against the other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party parties thereto, except asas would not constitute, individually or in the aggregate, has not had and would not reasonably be expected to have a Clearday Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries Except as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure to be in full force and effect thatwould not constitute, individually or in the aggregate, has not had and would not reasonably be expected to have a Clearday Material Adverse Effect, neither Clearday nor any Clearday Subsidiary, on the one hand, nor, to the Knowledge of Clearday, any other party, on the other hand, is in default under any such ground lease which default is reasonably likely to result in a termination of such ground lease. Each No purchase option has been exercised under any of such ground lease, except purchase options whose exercise has been evidenced by a written document as described in Section 3.1(o) of the Company Clearday Disclosure Letter. Clearday has made available to Purchaser a correct and its Subsidiaries enjoys peaceful complete copy of each such ground lease and undisturbed possession under all such leasesmaterial amendments thereto.
(vii) Neither Clearday nor any Clearday Subsidiary is a party to any agreement relating to the management of any of the Clearday Properties by a party other than Clearday or any wholly-owned Clearday Subsidiaries, except for any such failure to do so that, individually or in as disclosed Section 3.1(o) of the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19Clearday Disclosure Letter.
Appears in 2 contracts
Sources: Merger Agreement (Superconductor Technologies Inc), Merger Agreement (Superconductor Technologies Inc)
Properties. (ai) The Section 5.03(s)(i) of the Company’s Disclosure Schedule contains a complete and correct list of all real property or premises owned or operated by the Company as of the date hereof. Other than as disclosed in Section 5.03(s)(i) of the Company’s Disclosure Schedule, none of the Company or one any of its Subsidiaries has good owns, and valid no such entity is in the process of foreclosing (whether by judicial process or by power of sale) or otherwise in the process of acquiring title to, except pursuant to foreclosures which are pending in the ordinary course of business consistent with past practice, any real property or premises on the date hereof in whole or in part.
(ii) Section 5.03(s)(ii) of the case Company’s Disclosure Schedule contains a complete and correct list of all real property or premises leased property or subleased in whole or in part by the Company or any of its Subsidiaries, and leased tangible assets, together with a valid leasehold interest inlist of applicable leases or subleases and the name of the lessor or sublessor.
(iii) To the Company’s Knowledge, all real and personal property owned by the Company or any of its assets constituting personal property Subsidiaries or presently used by any of them in their respective business is in a good condition (excludingordinary wear and tear excepted) and is sufficient to carry on their respective business in the ordinary course of business consistent with their past practices. The Company has good, for purposes of this sentence, assets held under leases)marketable and indefeasible title, free and clear of all Liens Liens, to all of the material properties and assets, real and personal, reflected on the consolidated balance sheet of the Company as of March 31, 2021, or acquired after such date, other than properties sold by the Company or any of its Subsidiaries in the ordinary course of business, except (iA) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of payable for which is being contested in good faith by appropriate proceedingsadequate reserves have been established, (iiB) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising pledges to secure deposits incurred in the ordinary course of its banking business consistent with past practice, (C) such imperfections of title, easements and encumbrances, if any, as are not material in character, amount or extent, (D) as reflected on the consolidated balance sheet of the Company as of March 31, 2021.
(iv) All real and personal property which is material to the Company’s business on a consolidated basis and leased or licensed by the Company or any of its Subsidiaries is held pursuant to leases or licenses which are valid obligations of the Company or any of its Subsidiaries and, to the Company’s Knowledge, are valid and binding obligations of the other parties thereto, enforceable against the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in of the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenantsCompany, and to Company’s Knowledge, the other similar rights or restrictions that were not incurred parties thereto, in connection accordance with their terms, subject to the borrowing Bankruptcy and Equity Exception.
(v) Except as set forth in Section 5.03(s)(v) of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31Disclosure Schedule, 2010 (such leases will not terminate or lapse prior to the notes thereto) included in Effective Time and the Company SEC Documents; and (v) each of its Subsidiaries has the right to use and occupy such leased real property for the full term, and in accordance with the conditions of the lease relating thereto. Neither the Company nor any of its Subsidiaries has received any written notice of termination, cancellation, breach or default under any such matters of recordreal property lease and, Liens and other imperfections of title that do not, individually or in to the aggregate, impair the continued ownership, use and operation Knowledge of the assets Company as of the date hereof, no event has occurred, and no circumstances or condition exists, that (with or without notice or lapse of time, or both) will, or would reasonably be expected to, (A) result in a violation or breach of any of the provisions of any real property lease, (B) give any Person the right to which they relate in declare a default or exercise any remedy under any real property lease, (C) give any Person the business right to accelerate the maturity or performance of any real property lease, or (D) give any Person the right to cancel, terminate or modify any real property lease. To the Company’s Knowledge, the Company and its Subsidiaries are in compliance with all applicable health and safety related requirements for the real property owned by any of them, including those requirements under the Americans with Disabilities Act of 1990, as currently conducted amended. None of the owned or leased premises or properties described in paragraph (“Permitted Liens”)i) or (ii) above have been condemned or otherwise taken by any Governmental Entity and no condemnation or taking is threatened or contemplated and none thereof is subject to any claim, contract or law which might adversely affect its use or value for the purposes now made of it.
(bvi) Except as set forth in Section 4.18(b5.03(s)(vi) of the Company’s Disclosure Schedule, (A) neither the Company Disclosure Letter sets forth a true and complete list nor any of all its Subsidiaries has granted any options or rights of first refusal to purchase any real property owned by the Company or any of its Subsidiaries (“Owned Real Property”or any portion thereof or interest therein), (B) and all neither the Company nor any of its Subsidiaries has leased, subleased, licensed or granted occupancy rights in any portion or any real property leased for owned by the benefit Company or any of its Subsidiaries, (C) to the Company’s Knowledge, no other Person has any rights to the use, occupancy or enjoyment of any real property owned by the Company or any of its Subsidiaries pursuant to any lease, sublease, license, occupancy or other agreement.
(vii) Except as set forth in Section 5.03(s)(vii) of the Company’s Disclosure Schedule, the real property owned by the Company or any of its Subsidiaries (“Leased Real Property”). Each A) is occupied under a valid certificate of occupancy or similar permit, (B) the Transaction will not require the issuance of any new or amended certificate of occupancy and, (C) to the Company’s Knowledge, there are no facts that would prevent any such property from being occupied and used by First Foundation Bank after the Closing in the same manner as occupied by the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, immediately prior to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective TimeClosing.
(cviii) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of To the Company’s Knowledge, Leased Real Property (x) all improvements on the real property owned by the Company or any of its Subsidiaries for are wholly within the current or contemplated use lot limits of such real property and do not encroach on any adjoining premises or easement or similar property right benefiting such real property. To the knowledge of the Company, and (y) there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings encroachments on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of any real property owned by the Company and or any of its Subsidiaries as currently conducted.
(d) Each or any easement of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, right or benefit appurtenant thereto by any improvements located on any adjoining property which is detract from the subject of Section 4.19use therefrom.
Appears in 2 contracts
Sources: Merger Agreement (First Foundation Inc.), Merger Agreement (First Foundation Inc.)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(bSchedule 3.9(a) of the Company Disclosure Letter sets forth a true and complete list of Schedules lists or describes all interests in real property owned by the Company or any and each of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit Subsidiaries, including OREO, as of the Company or any date of its Subsidiaries (“Leased Real Property”). Each of this Agreement, together with the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use address of such real property. To the knowledge estate, and each lease of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases real property to which it is a party, and in each case of either owned or leased real property, the proper identification, if applicable, of each such property as a branch or main office or other office.
(b) The Company and each of its Subsidiaries has good and marketable title to all such leases are in full force assets and effectproperties, except for whether real or personal, tangible or intangible, that it purports to own, other than OREO, subject to no Liens of any such noncompliance or failure to be in full force and effect that, individually or kind except: (i) as noted in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Each most recent Company Financial Statements or as set forth in Schedule 3.9 of the Company Disclosure Schedules; (ii) statutory liens for Taxes not yet delinquent or being contested in good faith by appropriate Proceedings and for which adequate reserves have been established and reflected in the Company Financial Statements; (iii) pledges or liens required to be granted in connection with the acceptance of government deposits, granted in connection with repurchase or reverse repurchase agreements, securing any discount with, borrowing from, or obligations to any Federal Reserve Bank or Federal Home Loan Bank, interbank credit facilities or any transaction by the Bank acting in a fiduciary capacity or otherwise incurred in the Ordinary Course of Business and set forth on Schedule 3.9 of the Company Disclosure Schedules; (iv) easements, rights of way, and other similar encumbrances that do not materially affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair the business operations at such properties; (v) minor defects and irregularities in title and encumbrances that do not materially impair the value or use thereof for the purposes for which they are held as of the date of this Agreement; (vi) liens or deposits in connection with worker’s compensation, unemployment insurance, social security or other insurance; (vii) inchoate mechanic’s and materialmen’s liens for construction in progress and workmen’s, repairmen’s, warehousemen’s and carrier’s liens arising in the Ordinary Course of Business of the Company or the Bank consistent with past practice; and (viii) liens on property required by Regulation W promulgated by the Federal Reserve (collectively, the “Company Permitted Exceptions”). The 15 Company and each of its Subsidiaries enjoys peaceful as lessee has the right under valid and undisturbed possession under existing leases to occupy, use, possess and control any and all of the respective property leased by it, and each such leaseslease is valid and without default thereunder by the lessee or, except for to the Knowledge of the Company, the lessor. To the Knowledge of the Company, all buildings and structures owned by the Company and each of its Subsidiaries lie wholly within the boundaries of the real property owned or validly leased by it, and do not encroach upon the property of, or otherwise conflict with the property rights of, any such failure to do so thatother Person. Since December 31, individually 2022, none of the Company’s or in the aggregateits Subsidiaries’ real property, whether owned or leased, has not had and would not reasonably be expected been taken by eminent domain (or to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which the Knowledge of the Company is the subject of Section 4.19a pending or contemplated taking which has not been consummated).
Appears in 2 contracts
Sources: Merger Agreement (HBT Financial, Inc.), Merger Agreement (HBT Financial, Inc.)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries (i) has complied with good and valid title (or such lesser interest that is the terms maximum permitted by applicable Law) to all of all leases to which it is a party, their respective properties and all such leases are in full force other assets (other than properties and effect, except for any such noncompliance or failure to be in full force and effect thatassets that are, individually or and in the aggregate, has inconsequential) free and clear of all Liens except (A) statutory liens securing payments not had yet due, (B) security interests, mortgages and pledges that secure indebtedness that is reflected in the most recent consolidated financial statements of the Company included in the Filed Company SEC Documents and (C) such other imperfections or irregularities of title or other Liens that would not reasonably be expected to have a Material Adverse Effectmaterially affect the use of the properties or assets subject thereto or otherwise impair in any material respect business operations as presently conducted, and (ii) is the lessee or sublessee of all of their respective leasehold estates and leasehold interests. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases in all material respects.
(b) Since July 31, 2005, neither the Company nor any of its Subsidiaries owns or has owned any real property.
(c) Section 3.15(c) of the Company Disclosure Schedule sets forth any Contract pursuant to which the Company leases, except for licenses or otherwise obtains the right to use any real property (the “Real Property Leases”).
(d) The Company and its Subsidiaries enjoy in all material respects peaceful and undisturbed possession of the real property used by it under the Real Property Leases. Except as set forth in Section 3.15(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries subleases any such failure real property to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19any third parties.
Appears in 2 contracts
Sources: Merger Agreement (Dynamex Inc), Merger Agreement (Dynamex Inc)
Properties. (a) The Company Except for items disclosed in Section 4.16 of the Disclosure Schedule and goods and other property sold, used or one otherwise disposed of its Subsidiaries has good and valid title tosince June 30, or 2001 in the case ordinary course of leased property business, the Company and leased tangible the Subsidiaries have Good and Marketable Title, for oil and gas purposes, in and to all oil and gas properties set forth in the Reserve Report as owned by the Company and the Subsidiaries (the "Company's Oil and Gas Interests"), and defensible title for oil and gas purposes to all other properties, interests in properties and assets, a valid leasehold interest inreal and personal, all reflected on the balance sheet of the Company in its assets constituting personal property (excludingQuarterly Report on Form 10-Q for the period ended June 30, for purposes of this sentence2001, assets held under leases)as owned by the Company and the Subsidiaries, free and clear of all Liens other than any Liens, except: (i) statutory ad valorem and real estate and other Liens associated with obligations reflected in the SEC Reports; (ii) Liens for current taxes and assessments Taxes not yet past due and payable, (iii) materialman's, mechanic's, repairman's, employee's, contractors, operator's, and other similar liens, charges or encumbrances arising in the amount ordinary course of business (A) if they have not been perfected pursuant to law, (B) if perfected, they have not yet become due and payable or payment is being withheld as provided by law, or (C) if their validity of which is being contested in good faith by appropriate proceedingsaction, (iiiv) mechanics’all rights to consent by, workmen’srequired notices to, repairmen’sfilings with, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred actions by governmental entities in connection with the borrowing sale or conveyance of money oil and gas leases or interests if they are customarily obtained subsequent to the obtaining of advances sale or credit and that do notconveyance, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do nottitle, individually easements and Liens which have not had, or in the aggregatewould not reasonably be expected to have, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”)Material Adverse Effect. Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to To the knowledge of the Company, has all leases and other agreements pursuant to which the Company or any of the Subsidiaries leases or otherwise acquires or obtains operating rights affecting any real or personal property are in good standing, valid and effective and all royalties, rentals and other payment due by the Company to any lessor of any such condemnation, expropriation or taking oil and gas leases have been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party theretopaid, except asin each case, individually or in the aggregate, as has not had had, and would not reasonably be expected to have, a Material Adverse Effect. All major items of operating equipment of the Company and the Subsidiaries used in connection with the Company's Oil and Gas Interests over which the Company has operating rights are in good operating condition and in a state of reasonable maintenance and repair, ordinary wear and tear excepted, except as has not had, and would not reasonably be expected to have, a Material Adverse Effect.
(b) The term "Good and Marketable Title" will, for purposes of this Section 4.16, with respect to the Company and the Subsidiaries, mean such title that: (i) is deducible of record (from the records of the applicable parish or county or (A) in the case of federal leases, from the records of the applicable office of the Minerals Management Service or Bureau of Land Management, (B) in the case of Indian leases, from the applicable office of the Bureau of Indian Affairs, (C) in the case of state leases, from the records of the applicable state land office) or is assignable to the Company or the Subsidiaries out of an interest of record (as so defined) by reason of the performance by the Company or the Subsidiaries of all operations required to earn an enforceable right to such assignment; (ii) entitles the Company or the Subsidiaries to receive not less than the interest set forth in the Reserve Report with respect to each proved property evaluated therein under the caption "Net Revenue Interest" or "NRI" without reduction during the life of such property except as stated in the Reserve Report; (iii) obligates the Company or the Subsidiaries to pay costs and expenses relating to each such proved property in an amount not greater than the interest set forth under the caption "Working Interest" or "WI" in the Reserve Report with respect to such property without increase over the life of such property except as shown on the Reserve Report; and (iv) does not restrict the ability of the Company or the Subsidiaries to utilize the properties as currently intended; except in each case where deficiencies referenced in clauses (i) through (iv) would reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Merger Agreement (Devx Energy Inc), Merger Agreement (Comstock Resources Inc)
Properties. (a) The Company or one of ▇▇▇▇▇▇, together with its Subsidiaries has Subsidiaries, have in all material respects good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its the real properties and tangible assets constituting personal property (excludingi) reflected or disclosed in ▇▇▇▇▇▇’▇ Annual Report filed on Form 10-K for the fiscal year ended December 31, for purposes 2016 or (ii) acquired after December 31, 2016 (other than assets disposed of this sentencesince December 31, assets held under leases2016 in the Ordinary Course of business), free and clear of all Liens other than (iu) statutory ad valorem and real estate and other Liens for current taxes Taxes and assessments that are not yet past due or the amount or validity of which is for Taxes that are being contested in good faith by appropriate proceedingsproceedings and for which adequate reserves have been established in accordance with GAAP, (iiv) Liens securing Indebtedness reflected on the most recent consolidated balance sheet of ▇▇▇▇▇▇ included in the ▇▇▇▇▇▇ SEC Documents filed with the SEC prior to the date of this Agreement or incurred by ▇▇▇▇▇▇ or any of its Subsidiaries in the Ordinary Course of business since the date of such consolidated balance sheet, (w) Liens imposed or promulgated by Laws with respect to real property and improvements, including zoning regulations, which are not violated by the current use or occupancy of the real property, (x) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, ’s and carriers’ or similar Liens arising in the ordinary course Ordinary Course of business of the Company ▇▇▇▇▇▇ or such Subsidiary consistent with past practice any of its Subsidiaries for amounts which are not due and payable, (iiiy) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, Liens and other similar rights imperfections of title or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and record that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and ▇▇▇▇▇▇ or any of its Subsidiaries as currently conducted and (z) Liens set forth on Section 4.19(a) of the ▇▇▇▇▇▇ Disclosure Letter (the “▇▇▇▇▇▇ Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company ▇▇▇▇▇▇ and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 ▇▇▇▇▇▇ Material Adverse Effect. Each of the Company ▇▇▇▇▇▇ and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a ▇▇▇▇▇▇ Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Properties. (ai) (A) Colony Cove, located in Sarasota, Florida, and The Company Colony, located in Palm Springs, California, are the only real properties in which Chateau or one a Chateau Subsidiary holds a leasehold interest, and except as listed in Section 2.1(p)(i)(A) of its Subsidiaries has the Chateau Disclosure Letter, Chateau or a Chateau Subsidiary owns good and valid marketable fee simple or leasehold title to, to each of the real properties (including any and all improvements located on such properties) reflected on the most recent balance sheet of Chateau or Chateau OP included in the case Chateau SEC Documents and as identified in Section 2.1(p)(i)(A) of leased property and leased tangible assetsthe Chateau Disclosure Letter (each, a valid leasehold interest in"Chateau Property" and collectively, the "Chateau Properties"), which are all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases)the real estate properties owned or leased by Chateau and the Chateau Subsidiaries, free and clear of all Liens other than Liens, easements, rights of way, rights of first refusal, covenants, conditions, restrictions, title defects, written agreements, Laws, ordinances and regulations affecting building use or occupancy (iincluding zoning regulations and building codes), or reservations of an interest in title (collectively, "Chateau Property Restrictions") statutory ad valorem and real estate except for (1) debt and other matters identified on Section 2.1(p)(i)(A)(1) of the Chateau Disclosure Letter, (2) inchoate Liens imposed for current taxes and assessments construction work in progress or otherwise incurred in the ordinary course of business for amounts not yet past due delinquent or the amount or validity of which is are being contested in good faith by appropriate proceedingsproceedings and, in each case, with respect to which adequate reserves or other appropriate provisions are being maintained by Chateau or a Chateau Subsidiary, (3) mechanics', workmen's and repairmen's Liens (other than inchoate Liens for work in progress) which have heretofore been bonded or insured, (4) Chateau Property Restrictions imposed or promulgated by Law or by any Governmental Entity which are customary and typical for similar properties and all matters disclosed on the existing title policies identified in Section 2.1(p)(i)(B) of the Chateau Disclosure Letter, and (5) real estate Taxes and special assessments that are not yet delinquent or that are being contested in good faith by appropriate proceedings and, in each case, with respect to which adequate reserves or other appropriate provisions are being maintained by Chateau or a Chateau Subsidiary. To the Knowledge of Chateau and the Chateau Subsidiaries, none of the matters described in clauses (2) through (5) in the immediately preceding sentence (including, without limitation, matters disclosed on any existing title policies identified in Section 2.1(p)(i)(A) of the Chateau Disclosure Letter) has or would reasonably be expected to have, individually or in the aggregate, a Chateau Material Adverse Effect; (B) except as listed in Section 2.1(p)(i)(B) of the Chateau Disclosure Letter or as would not reasonably be expected to have a Chateau Material Adverse Effect, neither Chateau nor any Chateau Subsidiary has received written notice to the effect that there are any (1) condemnation or rezoning or proceedings or any utility service moratoriums or other moratoriums that are pending or, to the Knowledge of Chateau and the Chateau Subsidiaries, threatened with respect to any material portion of any of the Chateau Properties or (2) zoning, building or similar Laws or orders that are presently being violated or will be violated by the continued maintenance, operation or use of any buildings or other improvements on any of the Chateau Properties or by the continued maintenance, operation or use of the parking areas; and (C) except as listed in Section 2.1(p)(i)(C) of the Chateau Disclosure Letter or as would not reasonably be expected to have a Chateau Material Adverse Effect, neither Chateau nor any Chateau Subsidiary has received written notice that it is currently in default or violation of any Chateau Property Restrictions.
(ii) mechanics’Except as listed in Section 2.1(p)(ii) of the Chateau Disclosure Letter or, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ individually or similar Liens arising in the ordinary course aggregate, as would not reasonably be expected to have a Chateau Material Adverse Effect, all properties currently under development or construction by Chateau or the Chateau Subsidiaries and all properties currently proposed for acquisition, development or commencement of business construction prior to the Effective Time by Chateau and the Chateau Subsidiaries are listed as such in Section 2.1(p)(ii) of the Company Chateau Disclosure Letter. Except as listed in Section 2.1(p)(ii) of the Chateau Disclosure Letter or such Subsidiary consistent with past practice as, individually or in the aggregate, would not reasonably be expected to have a Chateau Material Adverse Effect, all executory agreements entered into by Chateau or any of the Chateau Subsidiaries relating to the development or construction of real estate properties (other than agreements for architectural, engineering, planning, accounting, legal or other professional services or agreements for material or labor) are listed in Section 2.1(p)(ii) of the Chateau Disclosure Letter.
(iii) encumbrances on real property Section 2.1(p)(iii) of the Chateau Disclosure Letter sets forth the rent roll for each of the Chateau Properties (the "Rent Roll") as of May 27, 2003. Except as disclosed in Section 2.1(p)(iii) of the Chateau Disclosure Letter, the information set forth in the nature Rent Roll is true, correct and complete in all material respects as of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do date thereof.
(iv) Except as would not, individually or in the aggregate, impair present business operations at such propertiesreasonably be expected to have a Chateau Material Adverse Effect, (iv) existing Liens disclosed in no tenants or other third parties have been granted options to purchase or rights of first refusal which would require consent to, or be triggered by, the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and Merger.
(v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation Section 2.1(p)(v) of the assets to which they relate Chateau Disclosure Letter contains a list of any unfunded capital improvements being conducted by Chateau or any Chateau Subsidiary in the business excess of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)$100,000 at any one Property.
(bvi) Except as set forth in Section 4.18(b2.1(p)(vi) of the Company Chateau Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and as would not reasonably be expected to have a Chateau Material Adverse Effect. Assuming all consents, approvals and authorizations listed the water serving each Chateau Property is potable water furnished by the local municipality in Section 4.5 of which each such Chateau Property is located; provided, however, that if the Company Disclosure Letter relating water system is privately owned or operated, neither Chateau nor any Chateau Subsidiary has received any uncured written notice that there is a requirement that it be connected to any Leased Real Property have been obtainedthe municipal, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Timecounty or other public system serving such Chateau Property.
(cvii) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge Except as set forth in Section 2.1(p)(vii) of the Company, Leased Real Property by the Company Chateau Disclosure Letter or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Chateau Material Adverse Effect. Each , the sanitary sewer (waste removal) system for each Chateau Property is operated by the municipality in which each such Property is located, and neither Chateau nor any Chateau Subsidiary has received an uncured written notice that the sanitary sewer (waste removal) system is not in compliance with applicable laws and regulations; provided, however, that if any such system is privately owned or operated, neither Chateau nor any Chateau Subsidiary has received any uncured notice that there is a requirement that it be connected to the municipal, county or other public system serving such Chateau Property.
(viii) A reputable title insurance company has issued policies of title insurance insuring the fee simple or leasehold, as applicable, title of Chateau and the Chateau Subsidiaries with respect to all of the Company Chateau Properties in amounts at least equal to the original cost thereof, and, to Chateau's Knowledge, such policies are valid and its Subsidiaries enjoys peaceful in full force and undisturbed possession effect and no claim has been made under all such leases, except for any such failure to do so thatpolicy.
(ix) Except as disclosed in Section 2.1(p)(ix) of the Chateau Disclosure Letter, individually or in the aggregate, has not had and except as would not reasonably be expected to have a Chateau Material Adverse Effect. This , to the Knowledge of Chateau and the Chateau Subsidiaries, no portion of any Chateau Property lies in any flood plain or includes any wetlands or vegetation or species protected by any applicable laws.
(x) Except as would not reasonably be expected to have a Chateau Material Adverse Effect, Section 4.18 does not relate 2.1(p)(x) of the Chateau Disclosure Letter contains a complete and accurate list of all binding commitments, letters of intent or similar written agreements made or entered into by Chateau or any of the Chateau Subsidiaries as of the date hereof (x) to intellectual propertysell, which is mortgage, pledge or hypothecate all or any portion of any Chateau Property, or to otherwise enter into a material transaction in respect of the subject ownership or financing of Section 4.19all or any portion of any Chateau Property, or (y) to purchase or acquire an option, right of first refusal or similar right in respect of any real property or properties.
Appears in 1 contract
Properties. (a) The Company or one of its Subsidiaries has own good and valid or marketable title to, or in the case of Leased Real Property or leased property and leased tangible assets, a Tangible Personal Property have valid leasehold interest or subleasehold interests in, all property and assets (whether real or personal, tangible or intangible) reflected on the Balance Sheet or acquired after the Balance Sheet Date and identified on Schedule 3.09(a). Except as set forth on Schedule 3.09(a) and Permitted Liens, none of its such property or assets constituting personal property is subject to any Liens.
(excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (ib) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business The Tangible Personal Property of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property and its Subsidiaries, taken as a whole, is in good operating condition and repair for the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries, subject only to the ordinary wear and tear, and is sufficient in all material respects for its intended purposes, in each case, except as set forth in Schedule 3.09(b).
(c) There are no leases for real estate leased or subleased to the Company or its Subsidiaries as currently conducted (collectively, “Permitted LiensLeased Real Property”).
(bd) Section 4.18(bSchedule 3.09(d) of the Company Disclosure Letter sets forth a true and complete list of all real property owned in fee simple by the Company and all real property in which any of the Subsidiaries of the Company owns marketable title (“Owned Real Property”).
(e) The Company has reasonably unrestricted, permanent, legally enforceable access to and from all of the Real Properties to publicly dedicated highways, roads or streets sufficient to permit Company to operate in the ordinary course of its business, and for such other uses and purposes as currently used or operated by Company, and, to Company’s Knowledge, there is no currently existing fact or condition which would result in the interference with or termination of such access.
(f) To the Knowledge of the Company, the Real Properties, and improvements thereon, are not in violation of any building or zoning laws or any development or zoning agreements.
(g) Each of the Real Properties has utilities, water supplies and sewer, septic and waste disposal systems servicing them sufficient to carry on the current operations on the Real Properties in all material respects, and there is no pending or, to the Knowledge of the Company, written threat to curtail or reduce any utility service, water supplies or sewer, septic or waste disposal systems to or for the Real Properties or any part thereof in any material respect. All potable and industrial water and all gas, electrical, telecommunication, sanitary and storm sewer lines, systems and hook ups and all other utilities and public or quasi-public improvements located upon, under, at or adjacent to the Real Properties are in good working order and are fully paid for. Other than usage fees payable in the ordinary course by the Company and its Subsidiaries, there are no recapture fees, association fees, or any other fees or costs required to be paid by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation thereforassociation, norutility company, to the knowledge of the CompanyAuthority, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries entity having authority to enforce same against all or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 portion of the Company Disclosure Letter relating to any Leased Real Property have been obtainedProperties, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries required for the current or contemplated use purposes of such real property. To the knowledge of the Companyowning, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plantsdeveloping, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good and/or operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conductedtherefrom.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Properties. (a) Section 4.18 of the Company Disclosure Letter sets forth (i) a true and complete list of all current material leases, subleases and licenses, including the current base rent and expiration date with respect thereto, and any and all material ancillary documents pertaining thereto, (collectively, the “Leases”) relating to the real property leased by the Company or any of its Subsidiaries as tenant or landlord (the “Leased Real Property”) and (ii) a true and complete list of the real property owned by the Company or any of its Subsidiaries (the ‘‘Owned Real Property” and together with the Leased Real Property, the “Real Property”), including each record owner thereof. The Company made available to Parent true and complete copies of all of the Leases prior to the date hereof.
(b) Except as set forth on Section 4.18(b) of the Company Disclosure Letter, the Company or one of its Subsidiaries has good and valid title to, or in the case of leased property the Leased Real Property and leased tangible assets, a valid leasehold interest in, all of its (i) Real Property and (ii) tangible assets constituting personal property (excludingthat are necessary for the Company and its Subsidiaries to conduct their respective businesses as currently conducted, for purposes of this sentence, assets held under leases)in each case, free and clear of all Liens other than (iA) statutory ad valorem and real estate and other Liens for current taxes and assessments Taxes not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedingsproceedings and for which adequate reserves have been established in accordance with GAAP, (iiB) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, ’s and carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenantspractice, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (vC) any such minor matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair in any material respect the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a partyof the Leases, and all such leases of the Leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each Neither the Company nor any of its Subsidiaries or, to the knowledge of the Company, any counterparty to any of the Leases, is in breach of, or default under, any of the Leases. Except for locations where the Company or any of its Subsidiaries has subleased or licensed space to a third party, each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leasesof the Leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any of its Subsidiaries (i) owns or holds, or is obligated under or a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell or dispose of the Real Property or any portion thereof or interest therein or (ii) has received notice of any condemnation or eminent domain proceedings with respect to the Real Property.
(e) All of the land, buildings, structures and other improvements used by the Company or its Subsidiaries in the conduct of their respective businesses are included in the Real Property. This Section 4.18 does not relate to intellectual propertyIntellectual Property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Merger Agreement (CKX, Inc.)
Properties. None of ▇▇▇▇▇ or any of the ▇▇▇▇▇ Subsidiaries own any real property. Section 3.18 of the ▇▇▇▇▇ Disclosure Schedule sets forth by location all real property used or occupied by ▇▇▇▇▇ or any ▇▇▇▇▇ Subsidiary (aeach, a “Leased Property”) The Company that is held under lease or one sub-lease by ▇▇▇▇▇ or any of its the ▇▇▇▇▇ Subsidiaries (the “Leases”). Except for the properties subject to the Leases and as set forth in Section 3.18 of the ▇▇▇▇▇ Disclosure Schedule, each of ▇▇▇▇▇ and the ▇▇▇▇▇ Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases)title, free and clear of all Liens other than Liens, to all of its material tangible personal property, except for (i) statutory ad valorem and real estate and other Liens liens for current taxes and assessments Taxes not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedingsand payable, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising liens imposed by Law and incurred in the ordinary course of business of the Company or such Subsidiary consistent with past practice for obligations not yet due to carriers, warehousemen, laborers and materialmen and (iii) encumbrances on real property liens in the nature respect of zoning restrictionspledges or deposits under workers’ compensation Laws, easements, rights all of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse EffectEffect (such exceptions, “Permitted Liens”). Assuming all consentsAll material tangible property owned by ▇▇▇▇▇ or any ▇▇▇▇▇ Subsidiary is free from material defects, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have has been obtained, all leases of Leased Real Property shall remain valid and binding maintained in accordance with their past practice of ▇▇▇▇▇ or the applicable ▇▇▇▇▇ Subsidiary and generally accepted industry practice, is in good working order, ordinary wear and tear excepted, and is suitable for the purposes for which they are presently used. All material tangible personal property leased by ▇▇▇▇▇ or any ▇▇▇▇▇ Subsidiary is in good working order, ordinary wear and tear excepted, and is in all material respects in the condition required of such property by the terms of the lease applicable thereto during the term of the lease and upon expiration thereof. With respect to each Leased Property, (i) ▇▇▇▇▇ or such ▇▇▇▇▇ Subsidiary has a good and valid leasehold (or as applicable, subleasehold) estate relating thereto, free and clear of all Liens (except for Permitted Liens), leases, assignments, subleases, easements, covenants, rights-of-way and other similar restrictions of any nature whatsoever, except (A) as set forth in such Lease, (B) any easements or rights of way, (C) any encumbrances of record affecting the fee title to the Leased Property or affecting any superior landlord’s interest in the Leased Property, (D) the rights of any ground landlord, if any, and any mortgagee(s), if any, of the landlord or any ground landlord, in the case of (B), (C) and (D), that do not and will not for the term of the applicable Lease materially interfere with the use of the property subject thereto or affected thereby, consistent with its current use (ii) the Lease relating to such Leased Property is in writing and is legal, valid, binding, in full force and effect and enforceable in accordance with its terms, (iii) the Lease relating to such Leased Property will, immediately following the Effective Time.
, continue to be legal, valid, binding, in full force and effect and enforceable in accordance with its terms as in effect on the date hereof, (civ) There are ▇▇▇▇▇ or such ▇▇▇▇▇ Subsidiary is not and, to the knowledge of ▇▇▇▇▇, no contractual other party to the Lease relating to such Leased Agreement and Plan of Merger Property is, in breach or legal restrictions that preclude violation of, or materially restrict the ability to use any Owned Real Property in default under, such Lease, (v) no event, occurrence, condition or act has occurred, is pending or, to the knowledge of ▇▇▇▇▇ is threatened, which, with the Companygiving of notice, Leased Real Property lapse of time, or the happening of any further event, occurrence, condition or act, would constitute a breach or default by the Company or any of its Subsidiaries for the current or contemplated use of ▇▇▇▇▇, such real property. To ▇▇▇▇▇ Subsidiary or, to the knowledge of the Company▇▇▇▇▇, any other party to such Lease, under such Lease, or give rise to a right of termination, cancellation or to loss of a material benefit under, or to increased, additional, accelerated or guaranteed rights or entitlements of any Person under any such Lease, (vi) there are no material latent defects disputes, oral agreements or material adverse physical conditions affecting forbearance programs in effect as to the Owned Real Lease relating to such Leased Property, (vii) all facilities included in such Leased Property or Leased Real Property. All plants, warehouses, distribution centers, structures are supplied with utilities and other buildings services adequate for the operation of such facilities, (viii) all rents and additional rents due on the Owned Real Lease relating to such Leased Property have been paid, and (ix) the current use by ▇▇▇▇▇ or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements such ▇▇▇▇▇ Subsidiary of the business facilities located on such Leased Property does not violate any local zoning or similar land use requirement or other Law in any material respect. ▇▇▇▇▇ has made available to Acquiror complete and accurate copies of each of the Company Leases and its Subsidiaries as currently conducted.
(d) Each none of the Company and its Subsidiaries Leases has complied with the terms of all leases to which it is a party, and all such leases are in full force and effectbeen modified, except for any to the extent such noncompliance or failure to be modifications have been disclosed in full force and effect that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Each Section 3.18 of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19▇▇▇▇▇ Disclosure Schedule.
Appears in 1 contract
Sources: Merger Agreement (Coley Pharmaceutical Group, Inc.)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries (b) owns and has complied with good and valid title (or such lesser interest that is the terms maximum permitted by applicable Law) to all of their respective properties and other assets free and clear of all leases to which it is a partyLiens except (A) statutory liens securing payments not yet due, and all (B) such leases are in full force and effect, except for any such noncompliance other imperfections or failure to be in full force and effect that, individually irregularities of title or in the aggregate, has not had and other Liens that would not reasonably be expected to have a Material Adverse Effectmaterially affect the use of the properties or assets subject thereto or otherwise impair in any material respect business operations as presently conducted, and (ii) is the lessee or sublessee of all of their respective leasehold estates and leasehold interests. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases in all material respects.
(b) Neither the Company nor any of its Subsidiaries owns any real property.
(c) Section 3.15(c) of the Company Disclosure Schedule sets forth any Contract pursuant to which the Company leases, except for licenses or otherwise obtains the right to use any real property (the “Real Property Leases”). The Company has delivered to Parent a true and complete copy of each such failure to do so that, individually or Real Property Lease.
(d) Except as set forth in the aggregateCompany Disclosure Schedule, with respect to each Lease: (i) such Real Property Lease is legal, valid, binding, enforceable and in full force and effect; (ii) none of the execution and delivery of this Agreement by the Company, the consummation by the Company of the Transactions, or the compliance by the Company with any of the terms and provisions hereof, will require the consent of any other party to such Real Property Lease, will result in a breach of or default under such Real Property Lease, or otherwise cause such Real Property Lease to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following the Closing; (iii) the Company’s or any of its Subsidiaries’ possession and quiet enjoyment of the real property used by it under the Real Property leases has not had been disturbed, and would to the Company’s Knowledge, there are no disputes with respect to such Real Property Leases; (iv) neither the Company nor any of its Subsidiaries owes, or will owe in the future, any brokerage commissions or finder’s fees with respect to such Real Property Leases; (v) the other party to such Real Property Lease is not reasonably be expected an affiliate of, and to have a Material Adverse Effect. This Section 4.18 the knowledge of the Company otherwise does not relate have any economic interest in the Company or any of its Subsidiaries; (vi) the Company or any of its Subsidiaries has not subleased, licensed or otherwise granted any person the right to intellectual property, which is use such real property or any portion thereof; (vii) the subject Company or any of Section 4.19its Subsidiaries has not collaterally assigned or granted any other security interest in such Real Property Lease or any interest therein; and (viii) there are no Liens or encumbrances on the estate or interest created by such Lease.
Appears in 1 contract
Sources: Merger Agreement (SmartPros Ltd.)
Properties. (a) The Company or one and each of its Subsidiaries has good and valid marketable title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excludingthe properties and assets, for purposes of this sentencereal and personal, assets held under leases)tangible or intangible, that it purports to own or lease, free and clear of all Liens other than Liens, except for (i) statutory ad valorem and real estate and other Liens for current taxes Taxes or assessments and assessments similar charges not yet past due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings, proceedings or (ii) mechanics’, workmenmechanic’s, repairmenmaterial men’s, landlordcontractor’s, warehousemen’s, carriers’ repairman’s or similar Liens arising in the ordinary course of business of the Company or such Subsidiary business, consistent with past practice (iiithe items in clauses (i) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (vii) any such matters of recordcollectively, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) All machinery, equipment and other tangible personal property owned or leased by the Company or used in the Company’s Business are (i) in generally good operating condition, reasonable wear and tear excepted, and (ii) not in need of renewal or replacement, except for renewal or replacement in the ordinary course of business. Section 4.18(b3.12(b) of the Company Disclosure Letter sets forth a true Schedule identifies each parcel of real property leased by the Company. The Company has provided to Parent true, correct and complete list copies of all leases, subleases and other agreements under which the Company uses or occupies or has the right to use or occupy any real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) facility, including all modifications, amendments and all property leased for the benefit of the Company supplements thereto, and such lease, sublease or any of its Subsidiaries (“Leased Real Property”). Each of the Company other agreement is a valid, binding and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge enforceable obligation of the Company, has any such condemnationand will continue to be valid, expropriation binding and enforceable immediately following the Closing in accordance with the terms thereof as in effect prior to the Closing (except as the foregoing may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or taking been proposedother similar Laws relating to or affecting the enforcement of creditors’ rights generally and legal principles of general applicability governing the availability of equitable remedies (whether considered in a proceeding in equity or at Law or under applicable legal codes)). All leases of Leased Real Property and all amendments and modifications thereto are The Company is not in full force and effectbreach or default, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event has occurred which, with notice or lapse of time or bothtime, would constitute a breach or default thereunder by the Companyor permit termination, any of its Subsidiaries modification or any other party theretoacceleration thereunder, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects disputes, oral arguments or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of forbearance programs to which the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are party in full force and effect, except for effect as to any such noncompliance lease or failure 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 Material Adverse Effectsublease. Each of the The Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual own any real property, which is the subject of Section 4.19.
Appears in 1 contract
Properties. (a) The Company or one a Subsidiary of its Subsidiaries the Company has good and valid title to, to or in the case of leased property and leased tangible assets, a valid and enforceable leasehold interest in, or enforceable license for, all material buildings, improvements, machinery, equipment and other tangible assets that are used by it in the conduct of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), the Business as presently conducted. Each tangible asset is free and clear of all Liens (other than (i) statutory ad valorem and real estate and other Permitted Liens for current taxes and assessments not yet past due or Liens granted pursuant to Indebtedness to be repaid at the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”Closing).
(b) Section 4.18(b) of the Company Disclosure Letter Schedule 3.11 sets forth a true complete and complete list correct summary of all real property owned by leases and sub-leases to which the Company or any of its Subsidiaries is party (collectively, the “Owned Real PropertyLeases”) and all ). With respect to each real property leased for the benefit of lease pursuant to which such real properties are leased, neither the Company or nor any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation thereforSubsidiaries, nor, to the knowledge of the Company’s Knowledge, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by including the Company, landlords under any of its Subsidiaries or the Leases, is in material default under any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Timesuch Lease.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability (i) Sellers have made available to use any Owned Real Property or, to the knowledge Purchaser true and correct copies of the CompanyLeases (including, Leased Real Property without limitation, all assignments, subleases, amendments, supplements and other modifications thereof); (ii) neither the Company nor its Subsidiaries, whichever is a party to such Lease, has received any written notice from a landlord claiming any material breach or default by the Company or any of its Subsidiaries for Subsidiaries, whichever is a party to such Lease, as tenant under the current or contemplated use of such real property. To the knowledge of the CompanyLease, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of which has not been cured; (iii) neither the Company nor its Subsidiaries, whichever is a party to such Lease, has sent written notice to any landlord under any Lease claiming that such landlord is in default, which default remains uncured; and (iv) neither the Company nor its Subsidiaries as Subsidiaries, whichever is a party to such Lease, are currently conductedclaiming or asserting any defenses, counterclaims, set-offs, offsets or abatements of or against, or disputes with respect to the calculation of, the fixed rent, additional rents or any other charges payable under any Lease.
(d) Each of Neither the Company and nor any of its Subsidiaries has complied given any guarantee or indemnity relating to the Leases except as expressly set forth in the copies of the Leases provided to Purchaser.
(e) Neither the Company nor its Subsidiaries owns any real property, except with the terms of all leases respect to those buildings and other improvements located on any property subject to a Lease which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19ground lease.
Appears in 1 contract
Properties. (aSchedule 3.11(a) The sets forth as of the date hereof a complete and accurate list and the addresses of all real property owned or leased by the Company or one any of its Subsidiaries has good or any Property Joint Venture or otherwise used by the Company or any of its Subsidiaries or any Property Joint Venture in the conduct of their business (other than Tenancy Leases which are addressed in Section 3.11(l)) or operations (collectively, and valid title totogether with the land at each address referenced on Schedule 3.11(a) 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 "COMPANY PROPERTIES"). Each of the Company Properties is owned or leased by SUSA, a Subsidiary of SUSA or a Property Joint Venture, as indicated on Schedule 3.11(a), and the Company itself does not directly own or lease any Company Property. To the Sellers' knowledge, SUSA or, in the case of leased property Company Properties owned by Subsidiaries of SUSA or Property Joint Ventures, such Subsidiaries or Property Joint Ventures, own good and leased tangible assetsmarketable fee simple or leasehold title, a valid leasehold interest inas applicable, all to each of its assets constituting personal property (excludingthe Company Properties, for purposes of this sentence, assets held under leases), in each case free and clear of all Liens other than any Liens, title defects, contractual restrictions or covenants, laws, ordinances or regulations affecting use or occupancy (including zoning regulations and building codes) or reservations of interests in title (collectively, "PROPERTY RESTRICTIONS"), except for (i) statutory ad valorem Permitted Liens and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’Property Restrictions imposed or promulgated by law or by any Government Authority which are customary and typical for similar properties. To the Sellers' knowledge, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business none of the matters described in clauses (i) and (ii) of the immediately preceding sentence materially interferes with, impairs, or is violated by, the existence of any building or other structure or improvement which constitutes a part of, or the present use, occupancy or operation (or, if applicable, development) of, the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenantsProperties taken as a whole, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that such matters do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 have a Material Adverse Effect. American Land Title Association policies of title insurance (or marked title insurance commitments having the notes theretosame force and effect as title insurance policies) included in have been issued insuring the Company SEC Documents; and (v) any such matters fee simple or leasehold, as applicable, title of recordSUSA, Liens and other imperfections of title that do notits Subsidiaries or the Property Joint Ventures, individually or in the aggregateas applicable, impair the continued ownership, use and operation of the assets with respect to which they relate in the business all of the Company Properties in amounts at least equal to the original cost thereof, and, to the Sellers' knowledge, such policies are valid and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) in full force and effect and no claim has been made under any such policy. The Sellers have delivered or made available to the Buyer true and complete copies of all such policies and of the most recent surveys of the Company Disclosure Letter sets forth a Properties indicated on Schedule 3.11(a), and true and complete list copies of all real property owned by material ex- ceptions referenced in such policies and the most recent title reports for and surveys (to the extent not previously delivered or made available to the Buyer) of each of the Company Properties available to the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company will be provided or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease made available by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder Sellers for inspection by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective TimeBuyer.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Security Capital Group Inc/)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet Except as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have result in a Material Adverse Effect, each Obligor and each Subsidiary has (i) good title to, or valid and subsisting leasehold interests in, all its Property, and (ii) marketable fee simple title to any owned Real Property Asset. Assuming all consents, approvals All machinery and authorizations listed in Section 4.5 equipment material to the business of the Company Disclosure Letter relating to any Leased Real Property Obligors and the Subsidiaries is in good operating condition (for the purpose for which it is used) and repair (normal wear and tear and immaterial loss from casualty and condemnation excepted), and all necessary replacements of and repairs thereto have been obtained, all leases of Leased Real Property shall remain valid made so as to preserve and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained maintain in all material respects the value and are operating efficiency of such machinery and equipment.
(b) Set forth on Schedule 5.05 is a complete list of (i) all Copyrights of Recorded Books that have been registered in good operating condition the United States Copyright Office and repair for (ii) all Patents and Trademarks of the requirements of Obligors that have been registered in the United States Patent and Trademark Office. All registered Copyrights material to the business of the Company Obligors, if any, are set forth on Schedule 5.05. Each Obligor owns, or is licensed to use, all Patents, Trademarks and Copyrights and other intellectual property material to its Subsidiaries as currently conducted.
business (d“Proprietary Rights”) Each and, to the Knowledge of the Company and its Subsidiaries has complied with Obligors, the terms use thereof by the Obligors does not infringe upon the rights of all leases to which it is a party, and all such leases are in full force and effectany other Person, except for any such noncompliance or failure to be in full force and effect that, individually or in the aggregate, has not had and as would not reasonably be expected to have result in a Material Adverse Effect. Each .
(c) As of the Company Issue Date, Schedule 5.05 contains a true, accurate and complete list of all Real Property Assets, whether owned or leased. Except as specified in Schedule 5.05, each lease, sublease or assignment of lease (together with all amendments, modifications, supplements, renewals or extensions thereof) affecting any Leasehold Property of the Obligors is in full force and effect and the Obligors have no Knowledge of any material default that has occurred and is continuing thereunder, and each such agreement constitutes the legal, valid and binding obligation of each applicable Obligor or Subsidiary, as applicable, enforceable against such Obligor or Subsidiary in accordance with its Subsidiaries enjoys peaceful and undisturbed possession under all such leasesterms, except for any such failure as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19limiting creditors’ rights generally or by equitable principles.
Appears in 1 contract
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) 3.10 of the Company Disclosure Letter sets forth Schedule contains a true and complete list of all real property owned estate owned, and all material real estate leased, by the Company or any of its Subsidiaries (“Owned Real Property”) and all property except any thereof first acquired or leased for after the benefit of the Company or any of its Subsidiaries (“Leased Real Property”date hereof as permitted by Section 6.1 hereof). Each of the Company and its Subsidiaries has (i) good record and marketable title in fee simple to all Owned Real Property material real estate owned by it, and (ii) good has valid leasehold title to interests in all Leased Real Propertymaterial real estate leased by it, in each case, free and clear of all Liens except for Permitted Liens. No parcel of Owned Real Property Liens (as hereinafter defined) or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or as otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed disclosed in Section 4.5 3.10 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases Schedule. The current use of Leased Real Property shall remain valid such material owned and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property leased real estate by the Company or any of its Subsidiaries for does not violate in any material respect the current certificate of occupancy thereof or contemplated any material local zoning or similar land use of such or government regulations.
(b) The Company and its Subsidiaries have good and valid title to all material assets (other than the real property. To property which is represented and warranted in paragraph (a) above) shown on the knowledge Balance Sheet or acquired since the date of the CompanyBalance Sheet in the ordinary course of business, there are in each case free and clear of all Liens except for Permitted Liens or as otherwise disclosed in Section 3.10 of the Company Disclosure Schedule. There is no material latent defects or material adverse physical conditions affecting defect in the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good normal operating condition and repair for the requirements of the business of equipment owned or leased by the Company and its Subsidiaries as currently conductedSubsidiaries.
(dc) Each As used in this Agreement, "Permitted Liens" means (i) Liens shown on the Balance Sheet as securing specified liabilities or obligations as to which no default exists, (ii) mechanics', carriers', workmen's, repairmen's or other like Liens arising or incurred in the ordinary course of business with respect to liabilities that are not yet due or delinquent, or which are being contested in good faith by appropriate proceedings, (iii) Liens for Taxes, assessments and other governmental charges which are not due and payable or which may hereafter be paid without penalty or which are being contested in good faith by appropriate proceedings (for which adequate reserves have been made in the Company Balance Sheet), (iv) Liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance, social security, retirement and its Subsidiaries has complied other similar legislation for sums not yet due and payable, (v) Liens permitted to be incurred on and after the date hereof in accordance with the terms of all Section 6.1 hereof, (vi) leases to which it is a partythird parties, and all such leases are in full force and effect(vii) other imperfections of title or encumbrances, except for any such noncompliance or failure to be in full force and effect thatwhich, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Each materially detract from the value of the property or asset to which it relates or materially impair the ability of Republic or the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually use the property or asset to which it relates in substantially the aggregate, has not had and would not reasonably be expected same manner as it was used by the Company prior to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19Closing Date.
Appears in 1 contract
Properties. (a) The Company or one FFB Disclosure Schedule sets forth a list of all real property owned by FFB and its Subsidiaries has good and valid title toexcept as set forth in Section 3.22 of the FFB Disclosure Schedule, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, except for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of after the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictionsdate hereof, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company FFB and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) have good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each casetitle, free and clear of all Liens except Permitted Liens. No parcel that are material to the financial condition of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, norFFB and its Subsidiaries on a consolidated basis, to all their material properties and assets either tangible or intangible, real, personal or mixed, reflected in the knowledge financial statements of FFB as being owned by FFB and its Subsidiaries as of the Company, has any such condemnation, expropriation or taking been proposeddate thereof. All leases of Leased Real Property buildings, and all amendments fixtures, equipment and modifications thereto other property and assets which are material to its business on a consolidated basis, held under leases or subleases by either of FFB or its Subsidiaries are held under valid instruments enforceable in full force accordance with their respective terms. Substantially all of FFB's and effectits Subsid iaries' equipment in regular use has been well maintained and is in good serviceable condition, reasonable wear and tear excepted. "Lien" shall mean any mortgage, lien, security, interest, pledge, hypothecation, encumbrance, restriction, reservation, encroachment, infringement, easement, conditional sale agreement, title retention or other security arrangement, default of title, adverse right or interest, charge or claim of any nature whatsoever of, on or with respect to, any property or property interest, other than (i) Liens for current property taxes not yet due and payable, (ii) for FFSB, pledges to secure deposits and other Liens incurred in the ordinary course of the banking business, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and (iii) Liens that would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective TimeEffect on FFB.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Merger Agreement
Properties. (a) The Company or one Sites, together with all applicable Improvements, comprise all of its Subsidiaries has good and valid title to, or the real property used in the case operation of leased property and leased tangible assets, a valid leasehold interest in, the Business. The Land constitutes all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in necessary for the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)Sites.
(b) Section 4.18(b) The Company has good, valuable and insurable, marketable fee simple title of record to each of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has Properties, subject only to (i) good Permitted Exceptions and marketable other title matters disclosed in fee simple to all the Company's existing title insurance policies which do not individually or in the aggregate adversely affect the value, use or operation of the Owned Real Property Properties and (ii) good Liens securing the Indebtedness for borrowed money (which Liens are described in Section 3.4(b) of the Disclosure Schedule). Except as disclosed in Section 3.4(b)(i) of the Disclosure Schedule, the Company has good, valid, insurable and marketable leasehold title to interests in all Leased Real PropertyLeasehold Properties and a valid leasehold interest in all other leased Tower Assets, in each case, free and clear of all Liens, other than Permitted Exceptions and Liens except Permitted Liens. No parcel securing the Indebtedness for borrowed money, which shall be satisfied at the Closing.
(c) The Company has obtained valid and enforceable title insurance policies insuring its ownership interest in the Land, and has delivered to Purchaser true and correct copies of Owned Real Property Title Policies for all of Land, together with copies of instruments evidencing the Company's ownership interest and exceptions thereto, survey and as-built surveys in their possession or Leased Real Property is subject to any governmental decree or order to be sold or is being condemnedcontrol, expropriated or otherwise taken by any public authority with or without payment of compensation thereforand the most recent real estate Tax bills, norin each case, relating to the knowledge Sites.
(d) Except for the Tenant Leases or as set forth in Section 3.4(d) of the Disclosure Schedule, the Company, since July 1, 2003, has not sold, transferred, assigned, conveyed, leased or encumbered or otherwise disposed of, and neither is a party to any contract, understanding, agreement or arrangement with any Person to sell, transfer, assign, convey or otherwise dispose of, all or any portion of its right, title and interest (including air rights or development rights) in, to and under any Sites or any portion thereof.
(e) All fixed rent, additional rent, operating expenses, real estate Taxes and similar assessments, utility charges, common area maintenance charges and any other sums payable by the tenant under each Ground Lease that have fallen due have been paid, and no such amounts have been paid more than thirty (30) days in advance unless otherwise expressly required pursuant to the terms of a Ground Lease.
(f) Each Site has vehicular ingress and egress to publicly maintained highways or other public streets, and all paved or unpaved roads necessary for the full utilization of the Sites for their current purpose have been completed and dedicated for public use and accepted by all governmental authorities, or are the subject of valid and marketable access easements of record for the benefit of such Site and insured pursuant to the Title Policies.
(g) Except as set forth on Section 3.4(g) of the Disclosure Schedule, (i) there is no physical damage to any Improvements for which there is no insurance in effect covering the cost of restoration, except for such physical damage that would not have a material adverse effect on the value, condition or operation of any such condemnationproperty or any material portion thereof and (ii) each Owned Property is an independent property that does not rely on any facilities (other than public facilities and public roads) located on any property not included in such Owned Property to fulfill any requirement of any Authority or for the furnishing to such Owned Property of any essential building systems or utilities or access, expropriation except for any such reliance for which such Owned Property has a legal or taking equitable right with respect thereto.
(h) All Authorizations, including certificates of occupancy, required by any Authority for the use, occupancy and operation of each Site (with respect to all Improvements), in the manner in which such property is currently being used, occupied and operated, have been proposed. All leases of Leased Real Property obtained and all amendments and modifications thereto are in full force and effect, and there exists no default under any Sellers have delivered to Purchaser a true and correct copy of each such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective TimeAuthorization.
(ci) The Improvements related to each Site lie wholly within the boundaries and building restriction lines of such Site, and no improvements on adjoining properties encroach upon such property, and no easements or other encumbrances affecting such property encroach upon any of the Improvements, so as to affect the value or marketability of such Owned Property or Leasehold Property, as the case may be.
(j) There are no contractual pending or legal restrictions that preclude proposed special or materially restrict other assessments for public improvements or otherwise affecting any Site.
(k) Each of the ability to use Sites, including the operations thereof, is in compliance with all Applicable Laws in all material respects, and neither the Sellers nor their Affiliates has received notice of any Owned Real Property orcomplaint, investigation, order or other action from any Authority or other Person as to the knowledge condition, operation or Authorizations of any of the Company, Leased Real Property by Sites or the Company or any of its Subsidiaries Towers.
(l) Other than Liens securing the Indebtedness for borrowed money and the current or contemplated use of such real property. To the knowledge of the CompanyPermitted Exceptions, there are no material latent Liens or defects in title to any Site, or material adverse physical conditions any matters affecting the Owned Real Property title to, or Leased Real Property. All plantsownership of, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conductedany such properties.
(dm) Each Except as disclosed in Section 3.4(m) of the Disclosure Schedule, (i) the Company has obtained or is a party to all Authorizations, agreements, Easements or other rights that are necessary to permit the lawful use and its Subsidiaries has complied with operation of the terms Improvements as they are being used, or that are necessary to permit the lawful use and operation of all leases driveways, roads and other means of lawful egress and ingress to which it is a partyand from the Sites, and (ii) all such leases Authorizations, agreements, Easements and other rights are in full force and effect, except for and, to the Company and each Seller's Knowledge, there is no pending threat of modification or cancellation thereof and (iii) neither the Company nor its Affiliates nor Sellers have received any such noncompliance written notice of any violation of any Law or failure to be expected change in full force and effect that, individually or in the aggregate, has not had and Law issued by an Authority that would not reasonably be expected to have a Material Adverse Effect. Each Effect on any Site or portion thereof.
(n) Except as disclosed on Section 3.4(n) of the Disclosure Schedule, (i) there are no condemnation or rezoning proceedings that are pending or, to the Company and its Subsidiaries enjoys peaceful each Seller's Knowledge, contemplated or threatened, with respect to any of the Sites or for the relocation of roadways providing access to such Sites or (ii) there are no zoning, building or similar Laws or conditions or agreements contained in any Easement, restrictive covenant or any similar instrument or agreement affecting any Site that are or will be violated by the continued maintenance, operation or use of any Improvements or the Sites.
(o) Except as disclosed in Section 3.4(o) of the Disclosure Schedule, the Company has good and undisturbed possession under valid title to all such leases, except for any such failure to do so that, individually or of the personal property of the Business included in the aggregateTower Assets. The personal property of the Business included in the Tower Assets is (i) owned by the Company and (ii) in good operating condition and fit for the purposes for which the Company is currently using them in connection with the Business, subject to normal maintenance requirements and normal wear and tear reasonably expected in the ordinary course of business.
(p) Section 3.4(p) of the Disclosure Schedule sets forth a true and complete list of all of the assets of the Company. The Tower Assets constitute all of the assets, properties, rights, Authorizations and agreements which are being used by the Company in the Business as conducted by the Company, and include all of the assets, properties, rights, Authorizations and agreements necessary to conduct the Business in substantially the same manner as the Business has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is been conducted by the subject of Section 4.19Company.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Global Signal Inc)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b4.14(a)(i) of the Company Disclosure Letter sets forth a true and complete list, as of March 31, 2017, of the real property owned, directly or indirectly, by the Company or any of its Subsidiaries (or any entity in which the Company or its Subsidiary, directly or indirectly, owns an equity interest) which summary sets forth (A) a list of each residential and mixed-use project, along with the name of the Subsidiary that owns each such project, (B) a list of properties currently in the entitlement process, along with the name of the Subsidiary that owns each such property, (C) the acreage by category of non-core timberland and undeveloped land and (D) a list of non-core multifamily projects and sites, along with the name of the Subsidiary that owns each such project. Except for the Owned Real Property and the JV Owned Real Property set forth on Section 4.14(a)(i) of the Company Disclosure Letter, as of the date of this Agreement, neither the Company nor any Subsidiary nor, to the knowledge of the Company, any Joint Venture, owns, directly or indirectly, any other real property (or direct or indirect interest therein). The Company or one of its Subsidiaries, as applicable, has good, valid and marketable fee simple title to all real property owned by the Company or any of its Subsidiaries as of the date hereof (but specifically excluding any water or riparian rights and reservations owned by the Company and/or any of its Subsidiaries, the “Owned Real Property”) and, to the knowledge of the Company, the Joint Ventures have good, valid and marketable fee simple title to all real property leased owned by the Joint Ventures as of the date hereof (but specifically excluding any water or riparian rights and reservations owned by the Joint Ventures, the “JV Owned Real Property”), which Owned Real Property and, to the knowledge of the Company, JV Owned Real Property is free and clear of all Liens other than Permitted Liens; provided that, “Liens” shall not be deemed to include any pledges, claims, liens, charges, encumbrances or security interests which encumber, are secured by or relate to (x) any entity in which the Company or its Subsidiaries holds an equity interest which entity is not consolidated with the Company’s financial statements in accordance with GAAP, or (y) any such entity’s assets. Neither the Company, any of its Subsidiaries, the Owned Real Property nor, to the knowledge of the Company, any Joint Venture of JV Owned Real Property, is a party to, the subject of or obligated under any option, right of first refusal or other contractual right to sell, dispose of or lease any of the Owned Real Property or JV Owned Real Property or any portion thereof or direct or indirect interest therein to any Person (other than pursuant to this Agreement) other than in the ordinary course of business. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any Joint Venture is a party to any agreement or option to purchase any real property or interest therein other than in the ordinary course of business.
(ii) Section 4.14(a)(ii) of the Company Disclosure Letter sets forth a list of each real property which, as of the date of this Agreement, is under contract for the benefit of purchase or for sale by the Company or any of its Subsidiaries, or, to the knowledge of the Company, any Joint Venture.
(iii) Except as set forth on Section 4.14(a)(iii) of the Company Disclosure Letter, and except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any Joint Venture, has subleased, licensed or otherwise granted any person the right to use or occupy any Owned Real Property or JV Owned Real Property or any portion thereof (“Leased Real PropertyTenant Leases”). Each To the knowledge of the Company, neither the Company nor any Subsidiary nor Joint Venture is in breach or default under any Tenant Lease.
(iv) The Company and/or the applicable Subsidiaries have made available to Parent and Merger Sub, copies of all of the most recent policies of owner’s title insurance insuring the Owned Real Property or JV Owned Real Property (individually each, a “Company Title Insurance Policy”), which, in each case, the Company and its Subsidiaries have in their possession, and to the knowledge of the Company each such Company Title Insurance Policy is valid and in full force and effect with respect to the Person to which the policy was issued. Since January 1, 2014, no written claim has (i) good and marketable title in fee simple to all been made against any Company Title Insurance Policy insuring any Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, insuring any JV Owned Real Property, which, individually or in the aggregate, would be material to any Owned Real Property or JV Owned Real Property.
(v) As of the date hereof, except for assessments by municipal utility or other similar districts in regard to all or substantially all property within district boundaries, neither the Company nor any of its Subsidiaries have received written notice of any pending or proposed special assessments affecting the Owned Real Property, JV Owned Real Property, or any portion thereof. As of the date hereof, except for assessments by municipal utility or other similar districts in regard to all or substantially all property within district boundaries, no assessments for public improvements have been made against any Owned Real Property, or, to the knowledge of the Company, any JV Owned Real Property which, individually or in the aggregate, would be material to any Owned Real Property or JV Owned Real Property.
(b) Section 4.14(b) of the Company Disclosure Letter sets forth a list, as of the date hereof, of all Material Real Property Leases to which the Company or any of its Subsidiaries is a named tenant or licensee (or a successor or assignee thereof) or otherwise has the right to occupy real property, along with the address (other than with respect to groundwater leases) of all such real property leased pursuant to the Material Real Property Leases and the Subsidiary which is a party to such Material Real Property Leases. The Company has made available to Parent materially true, correct and complete copies of such Material Real Property Leases on or prior to the date hereof. To the knowledge of the Company, the Company and each of its Subsidiaries has complied in all material respects with the terms of the real property leases, ground leases, subleases or real property licenses to which the Company or any of its Subsidiaries is a named tenant, subtenant or licensee (or successor or assignee thereof) (the “Real Property Leases” and such condemnationreal property, expropriation or taking been proposed. All leases of the “Leased Real Property”). As of the date hereof, neither the Company nor any of the Subsidiaries has received a written notice of any material default under any Real Property Lease, and all amendments and modifications thereto such Real Property Leases are in full force and effect, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting creditors generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at Law) and there exists no except for such noncompliance or failure to be in full force and effect that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as set forth on Section 4.14(b) of the Company Disclosure Letter, and except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has subleased, licensed or otherwise granted any person the right to use or occupy any Leased Real Property or any portion thereof.
(c) Section 4.14(c) of the Company Disclosure Letter sets forth a list of all Material Management Agreements and Material Construction Agreements. The Company has made available to Parent materially true, correct and complete copies of such Material Management Agreements and Material Construction Agreements on or prior to the date hereof. As of the date hereof, neither the Company nor any of the Subsidiaries has received a written notice of any material default under any Material Management Agreement or Material Construction Agreement, and all such lease agreements are in full force and effect, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting creditors generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at Law) and except for such defaults or failure to be in full force and effect that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. None of the Company or any Subsidiary is a party to any agreement pursuant to which the Company or any Subsidiary manages or manages the development of any real property for any third party.
(d) As of the date hereof, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any Joint Venture has received written notice of any existing or pending appropriation, condemnation, eminent domain or like proceedings or similar actions that affect any Owned Real Property, Leased Real Property or JV Owned Real Property, (ii) to the knowledge of the Company, no condemnation, eminent domain or like proceeding or similar action is currently threatened in writing and (iii) neither the Company nor any of its Subsidiaries or any other party theretoSubsidiaries, nor any event whichnor, with notice or lapse to the knowledge of time or both, would constitute a default thereunder by the Company, any Joint Venture has received any written notice of the intention of any Governmental Entity or other Person to take or use any Owned Real Property or Leased Real Property.
(e) Except as set forth on Section 4.14(e) of the Company Disclosure Letter, no certificate, variance, permit or license from any Governmental Entity having jurisdiction over any of the Owned Real Properties or, to the knowledge of the Company, the JV Owned Real Properties or any agreement, easement or other right that is necessary to permit the current use by the Company of the Owned Real Properties or, to the knowledge of the Company, the JV Owned Real Properties has failed to be obtained or is not in full force and effect, except for such failures to be in full force and effect that, individually, or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. Except as set forth on Section 4.15(e) of the Company Disclosure Letter or as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any Joint Venture, has received written notice of any existing zoning or land use violations with respect to any Owned Real Property, Leased Real Property or JV Owned Real Property; (ii) there are no pending actions initiated by or on behalf of the Company, any Subsidiary of the Company or, to the knowledge of the Company, any Joint Venture to change or redefine the zoning classification or land use approvals of all or any portion of any Owned Real Property, Leased Real Property or JV Owned Real Property, except for actions which may be initiated in the ordinary course of business and pursuant to a plan of development or redevelopment prepared by the Company and/or its Subsidiaries or a Joint Venture, a true and correct copy of which has been provided to Parent; and (iii) to the knowledge of Company, each Owned Real Property, Leased Real Property and JV Owned Real Property has adequate access available to operate as it is currently being operated.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on the Company and except as set forth on Section 4.14(f) of the Company Disclosure Letter, and except for work performed at or materials furnished to Owned Real Property, Leased Real Property or JV Owned Real Property in the ordinary course of business within 120 days (or such longer period to the extent that the applicable underlying agreement for services and/or materials allows a payment period in excess of 120 days) prior to the date hereof, all material work performed or materials furnished to the Owned Real Property, Leased Real Property and, to the knowledge of the Company, JV Owned Real Property prior to the date hereof has (i) been paid for in full, (ii) will be paid in the ordinary course of business or (iii) is being contested in good faith by appropriate proceedings and with adequate reserves established for payment in accordance with GAAP.
(g) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company and each of its Subsidiaries or any other party theretohas good and valid title to all their respective personal property and assets (but excluding the Owned Real Property and Leased Real Property), except for Permitted Liens and such personal property is in reasonably good working order and condition, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Assuming All such personal property and assets, are free and clear of all consentsconditions, approvals encroachments, easements, rights of way, restrictions and authorizations listed Liens, except for (A) Permitted Liens and (B) such other conditions, encroachments, easements, rights of way, restrictions and Liens that would not, individually or in Section 4.5 of the aggregate, reasonably be expected to have a Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective TimeMaterial Adverse Effect.
(ch) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects geotechnical or material adverse physical soil conditions adversely affecting any portion of the Owned Real Property or Leased JV Owned Real PropertyProperty which would preclude development thereof or render development thereof in accordance with the current business plan of the Company uneconomic such that the Company’s management would be reasonably likely to determine not to proceed with such development. All plantsTo the knowledge of the Company, warehouses, distribution centers, structures and other buildings on no portion of the Owned Real Property or Leased JV Owned Real Property are adequately maintained includes any archeological sites, paleontological sites, historical sites, artifacts or burial grounds of historical or cultural significance that would preclude development thereof or render development thereof in all material respects and are in good operating condition and repair for accordance with the requirements of the current business plan of the Company and its Subsidiaries as currently conducteduneconomic such that the Company’s management would be reasonably likely to determine not to proceed with such development.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Properties. (a) The Company real property leased under the Hayward Lease represents all real property used or one held for use in the Business, other than the Redwood City Lease, which Seller owns, leases, subleases, licenses or operates (all such real property, the “Real Property”). Section 3.15(a) of its Subsidiaries has good the Seller Disclosure Schedule correctly describes any Liens on Seller’s leasehold interests in the Real Property and valid title tospecifies the name of the lessor, the lease term and the basic annual rent for the Real Property Lease.
(b) Section 3.15(b) of the Seller Disclosure Schedule correctly describes all personal property used or held for use in the Business, including machinery, equipment, furniture, vehicles, storage tanks, spare and replacement parts, fuel and other trade fixtures and fixed assets, which Seller owns, leases or subleases, in each case with an individual original cost or leased value of $10,000 or more, and any Liens thereon, specifying in the case of leases or subleases, the name of the lessor or sublessor, the lease term and basic annual rent.
(c) Seller has good title to, and, in the case of the Real Property and any other leased property and leased tangible assetspersonal property, a has valid leasehold interest interests in, all of its assets constituting personal property Purchased Assets (excludingwhether real, for purposes of this sentencepersonal, assets held under leases)tangible or intangible) reflected on the Balance Sheet or acquired after the Balance Sheet Date. No Purchased Asset is subject to any Lien, free and clear of all Liens other than except:
(i) statutory ad valorem and real estate and other Liens disclosed on the Balance Sheet;
(ii) Liens for current taxes and assessments Taxes not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (iiand for which adequate accruals or reserves have been established on the Balance Sheet); or
(iii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising incurred in the ordinary course of business of the Company or such Subsidiary consistent with past practice which do not materially detract from the value of such Purchased Asset, or materially interfere with any present or intended use of such Purchased Asset (iii) encumbrances on real property including, without limitation, non-exclusive licenses to any Intellectual Property Rights granted in the nature ordinary course of zoning restrictionsbusiness) (clauses (i) - (iii) of this Section 3.15(b) are, easementscollectively, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(bd) Section 4.18(b) There are no developments affecting any of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, norPurchased Assets pending or, to the knowledge of Seller threatened, which might materially detract from the Companyvalue, has materially interfere with any present or intended use or materially adversely affect the marketability of such condemnation, expropriation or taking been proposed. All leases of Leased Purchased Assets.
(e) The Real Property comprises all real property used or held for use in connection with the conduct of the business and operations of the Business as presently conducted.
(f) The Real Property Lease and all amendments leases for personal property are valid, binding and modifications thereto are enforceable in full force and effect, accordance with their respective terms and there exists no default does not exist under any such lease any default by the Company, any of its Subsidiaries Seller or any other party thereto, nor any event which, which with notice or lapse of time or both, both would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective TimeSeller.
(cg) There are The equipment included in the Purchased Assets has no contractual or legal restrictions that preclude or materially restrict material defects, is in good operating condition and repair and has been reasonably maintained consistent with standards generally followed in the ability to use any Owned Real Property or, industry (giving due account to the knowledge age and length of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To same, ordinary wear and tear excepted), and is adequate and suitable for its present uses.
(h) The buildings and structures on the knowledge of the Company, there are Real Property: (i) have no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plantsdefects, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair and have been reasonably maintained consistent with standards generally followed in the industry (giving due account to the age and length of use of same, ordinary wear and tear excepted), and are adequate and suitable for their present uses; (ii) currently have access to public roads or valid easements over private streets or private property for such ingress to and egress from all such buildings and structures; and (iii) currently have access to water supply, storm and sanitary sewer facilities, telephone, gas and electrical connections, fire protection, drainage and other public utilities, in each case as is materially necessary for the requirements conduct of the business Business. To the knowledge of Seller, none of the Company buildings or structures on the Real Property substantially encroaches upon real property of another Person, and its Subsidiaries as currently conductedno building or structure of any other Person substantially encroaches upon any Real Property.
(di) Each To the knowledge of Seller, the Real Property, and its continued use, occupancy and operation as currently used, occupied and operated, does not constitute a nonconforming use under any Applicable Law relating to building, zoning, subdivision and other land use.
(j) None of the Company and its Subsidiaries has complied with the terms of all leases to which it Purchased Assets is a party, and all such leases are an equity interest in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19an entity.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ultra Clean Holdings Inc)
Properties. (a) The Company Pivotal and its Subsidiaries do not own any real property.
(b) Except as would not, individually or in the aggregate, be material to Pivotal and its Subsidiaries, taken as a whole, Pivotal or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, in all of its real properties and tangible assets constituting personal property (excluding, that are necessary for purposes of this sentence, assets held under leases)Pivotal and its Subsidiaries to conduct their respective businesses as currently conducted, free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes Taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedingsproceedings and for which adequate reserves have been established in accordance with GAAP, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, ’s and carriers’ or similar Liens arising in the ordinary course of business of the Company Pivotal or such Subsidiary consistent with past practice Subsidiary, (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company Pivotal and its Subsidiaries as currently conducted conducted, (iv) Liens specifically reflected on the Most Recent Pivotal Balance Sheet,
(v) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations, (vi) zoning, building and other similar codes and regulations which are not violated in any material respect by the use and operation of any property of Pivotal and its Subsidiaries, (vii) Liens, easements, rights-of-way, covenants and other similar restrictions that have been placed by any developer, landlord or other Person on property over which Pivotal or any of its Subsidiaries has easement rights or on any property leased by Pivotal or any of its Subsidiaries and subordination or similar agreements relating thereto, in each case that do not adversely affect in any material respect the occupancy or use of any property of Pivotal and its Subsidiaries, and (viii) transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities Laws (“Permitted Liens”).
(b) . Section 4.18(b3.18(a) of the Company Pivotal Disclosure Letter sets forth a true and complete list of all real property owned by leased for the Company benefit of Pivotal or any of its Subsidiaries (“Owned Real Property”) and all property leased pursuant to a Contract providing for the benefit annual aggregate rent in excess of the Company or any of its Subsidiaries (“Leased Real Property”)$5,000,000. Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, Except as would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except asnot have, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed the tangible personal property currently used in Section 4.5 the operation of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases business of Leased Real Property shall remain valid Pivotal and binding its Subsidiaries is in accordance with their terms following the Effective Timegood working order (reasonable wear and tear excepted).
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company Pivotal and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company Pivotal and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 section 3.18 does not relate to intellectual property, which is the subject of Section 4.19section 3.19.
Appears in 1 contract
Properties. (a) The Company or one of its Subsidiaries has good and valid title toSubsidiaries, or in as the case of leased property and leased tangible assetsmay be, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem holds good, marketable and valid fee simple title to all of the real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (iiproperties set forth on Section 3.18(a) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on Disclosure Letter, which real properties constitute all the real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in owned by the Company SEC Documents; and or its Subsidiaries (v) any all such matters of recordinterests in real property, Liens and other imperfections of title that do not, individually or in but only to the aggregate, impair the continued ownership, use and operation of the assets to which they relate extent used in the business of the Company and its Subsidiaries as currently conducted Subsidiaries, together with 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 are referred to herein, collectively, the “Owned Real Property”), and such Owned Real Property is free and clear of all Liens, title defects, contractual restrictions, covenants and reservations of interests in title (collectively, “Property Restrictions”) except for Permitted Liens”); and/or (ii) holds the Owned Real Property free of any outstanding options or rights of first refusal or offer or other similar pre-emptive rights to purchase or lease the Owned Real Property or any portion thereof or interest therein, which would be triggered by the execution and delivery of this Agreement or the Closing hereunder. The Company or its applicable Subsidiary is in possession of all of the Owned Real Property and has not entered into any lease, sublease, license or other occupancy agreement that would be material to the Company and its Subsidiaries, taken as a whole, with respect to any of the Owned Real Property.
(b) The Company or one of its Subsidiaries, as the case may be, holds a good and valid leasehold estate in all of the real properties leased, subleased, licensed or otherwise occupied by the Company and its Subsidiaries, which properties are material to the operation of the business of the Company and its Subsidiaries (all such leasehold interests in real property, collectively, the “Leased Real Property,” and together with the Owned Real Property, the “Company Properties”), and such Leased Real Property is free and clear of all Property Restrictions, except for Permitted Liens. Section 4.18(b3.18(b) of the Company Disclosure Letter sets forth lists each lease, sublease, license or other occupancy agreement or arrangement relating to the material Leased Real Property (each, a true and complete list of all real property owned by “Real Property Lease”). Except as would not have a Company Material Adverse Effect, the Company or any its applicable Subsidiary (i) is in possession of its Subsidiaries (“Owned all of the Leased Real Property”) Property and all property leased has the right to use and occupy the Leased Real Property for the benefit full term, and in accordance with the conditions, of the Real Property Lease relating thereto, and each such Real Property Lease is valid and in full force and effect and constitutes a valid and binding obligation of the Company or any of its Subsidiaries (“Leased Real Property”). Each the applicable Subsidiary of the Company Company, subject to the Bankruptcy and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property Equity Exception; and (ii) good leasehold title to all Leased Real Propertyhas not received any written notice of termination, in each casecancellation, free and clear of all Liens except Permitted Liens. No parcel of Owned breach or default under any such Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, Lease and to the knowledge of the Company, as of the date hereof, no event has occurred, and no circumstances or condition exists, that (with or without notice or lapse of time, or both) will, or would reasonably be expected to, (i) result in a material violation or breach of any such condemnation, expropriation or taking been proposed. All leases of Leased the provisions of any Real Property and all amendments and modifications thereto are in full force and effectLease, and there exists no (ii) give any Person the right to declare a default or exercise any remedy under any such lease by Real Property Lease, (iii) give any Person the right to accelerate the maturity or performance of any Real Property Lease, or (iv) give any Person the right to cancel, terminate or modify any Real Property Lease.
(c) To the knowledge of the Company, neither the Company nor any of its Subsidiaries or has violated any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, Lien affecting any of its Subsidiaries or any other party theretothe Company Properties, except aswhich violation has not been cured or, if not cured, would, individually or in the aggregate, has not had and would not be reasonably be expected to have a Company Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(cd) There (i) No condemnation proceedings are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property pending or, to the knowledge of the Company, Leased Real Property by the Company or threatened with respect to any of its Subsidiaries for the current or contemplated use of such real property. To Owned Real Property, and (ii) to the knowledge of the Company, there are no material latent defects Laws including any zoning regulation or material adverse physical conditions affecting the ordinance, building or similar Law, code, ordinance, order or regulation have been violated for any Owned Real Property Property, or Leased Real Property. All plantswill be violated by the continued maintenance, warehousesoperation or use of (in the manner currently maintained, distribution centers, structures and other buildings on the Owned Real Property operated or Leased Real Property are adequately maintained used in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(dSubsidiaries) Each any buildings or other improvements on any of the Company Properties, in the case of clauses (i) and its Subsidiaries has complied with the terms of all leases to (ii) above, which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure to be in full force and effect thatwould, individually or in the aggregate, has not had and would not be reasonably be expected to have a Company Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Share Purchase Agreement (Watson Pharmaceuticals Inc)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than Except (i) statutory ad valorem and real estate and other Liens for current taxes and assessments as would not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do notreasonably be expected to have, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the a Company SEC Documents; Material Adverse Effect and (vii) any such matters of recordfor Permitted Liens, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries have good title to, or valid leasehold or sublease interests in (or other comparable contract rights in or relating to), all tangible properties and assets reflected on the Company Balance Sheet or acquired after the Company Balance Sheet Date, except as currently conducted (“Permitted Liens”)have been disposed of since the Company Balance Sheet Date in the Ordinary Course.
(b) Section 4.18(b4.16(b) of the Company Disclosure Letter Schedule sets forth a true correct and complete list of all real property owned by the Company or any of its Subsidiaries as of the date of this Agreement (the “Owned Real Property”). Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) the Company or one of its Subsidiaries, as applicable, has good and valid fee simple title to all Owned Real Property, free and clear of all Liens other than Permitted Liens, (ii) neither the Company nor any Subsidiary of the Company has received written notice of any pending condemnation Proceeding with respect to any Owned Real Property and, to the Knowledge of the Company, no such Proceeding is threatened, (iii) all buildings, structures, improvements, fixtures, building systems and equipment, and all components thereof, located on the Owned Real Property are in good operating condition and repair (normal wear and tear expected), and (iv) the Owned Real Property has access to and from an adjacent public or private road or street with adequate ingress and egress available to such Owned Real Property for all purposes used or operated by the Company or any of its Subsidiaries.
(c) Section 4.16(c) of the Company Disclosure Schedule sets forth a correct and complete list of all real property leased for the benefit of that the Company or any of its Subsidiaries uses or occupies or has the right to use or occupy pursuant to a lease, sublease or other Contract as of the date of this Agreement (the “Leased Real Property”). Each of Except as would not reasonably be expected to have, individually or in the aggregate, a Company and its Subsidiaries has Material Adverse Effect, (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge Knowledge of the Company, has each lease, sublease, or license under which the Company or any such condemnationof its Subsidiaries leases, expropriation subleases or taking been proposed. All leases of licenses any Leased Real Property (each, a “Lease”) is, to the Knowledge of the Company, valid and all amendments and modifications thereto are in full force and effect, subject to the Bankruptcy and there exists no default under any such lease by Equity Exception, (ii) neither the Company, Company nor any of its Subsidiaries or Subsidiaries, nor to the Knowledge of the Company any other party theretoto a Lease, nor has violated any event provision of, or taken or failed to take any act which, with notice or without notice, lapse of time time, or both, would constitute a default thereunder by under the Companyprovisions of such Lease, and (iii) neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under any other party thereto, except asLease.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, has not had and a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any person any right to use or occupy any Owned Real Property or any Leased Real Property. Except as would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure to be in full force and effect thathave, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Each , neither the Company nor any of its Subsidiaries has since the Reference Date received written notice of the existence of any outstanding Order or of any pending Proceeding, and, to the Knowledge of the Company, there is no such Order or Proceeding threatened, relating to the ownership, lease, use, occupancy or operation by the Company and or its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually of the Owned Real Property or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19Leased Real Property.
Appears in 1 contract
Sources: Merger Agreement (GMS Inc.)
Properties. (a) The Company Except as set forth on Schedule 5.18, Seller owns outright, or one of its Subsidiaries has good and valid marketable title or rights under license to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases)the Assets, free and clear of all Liens any mortgage, lien, pledge, charge, claim, conditional sale or other than agreement, lease or encumbrance of any sort (i"Liens") statutory ad valorem and real estate and other except (a) Liens for current taxes and assessments Taxes not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedingsand payable, (iib) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising imposed by applicable law and incurred in the ordinary course of business for obligations not yet due and payable to landlords, carriers, warehousemen, laborers, materialmen and the like, and (c) those Liens identified as Permitted Liens on Schedule 5.18 (the "PERMITTED LIENS"), and such assets constitute all of the Company or such Subsidiary consistent with past practice (iii) encumbrances assets required for Purchaser to carry on the Business as it has been conducted.
5.18.1. Seller does not own any real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred used in connection with the borrowing of money or Business. Schedule 5.18.1 lists all premises used in connection with the obtaining of advances or credit and that do not, individually Business leased in whole or in the aggregatepart by Seller. Complete and correct copies of all such leases, impair present business operations at such propertiessubleases, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens licenses and other imperfections documents concerning such agreements and the interests of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property Seller therein have been obtainedheretofore delivered to Purchaser, all leases of Leased Real Property shall remain valid which leases, subleases, licenses and binding other agreements are validly enforceable in accordance with their terms following respective terms, subject to applicable laws of bankruptcy, insolvency or similar laws relating to creditors' rights generally. No material alterations are being made (or for which any commitment has been made) in any premises of Seller used in connection with the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real propertyBusiness. To the knowledge of Seller, no improvement, fixture or equipment of Seller in or on any such premises, nor the Company, there are no material latent defects occupation or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements leasehold of the business of the Company Seller and its Subsidiaries as currently conductedsubsidiaries with respect thereto, is in violation of any law, including, without limitation, any zoning, building, safety, health or environmental law.
(d) Each of the Company 5.18.2. EXCEPT AS OTHERWISE DISCLOSED ON SCHEDULE 5.18.2, ALL OF THE EQUIPMENT, OWNED OR LEASED BY SELLER, USED IN THE REGULAR CONDUCT OF THE BUSINESS has been reasonably maintained and its Subsidiaries has complied with the terms of all leases to which it is a partyin serviceable condition, reasonable wear and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19tear excepted.
Appears in 1 contract
Sources: Asset Purchase Agreement (Avalon Digital Marketing Systems Inc)
Properties. (a) None of the Company or the Subsidiaries owns, or has ever owned, or has any right to acquire any real property. The Company and the Subsidiaries have valid leasehold interests in all leased real property. None of such property is subject to any Lien, except:
(i) Liens for Taxes not yet due or one being contested in good faith (and for which adequate accruals or reserves have been established on the Balance Sheet in accordance with GAAP);
(ii) mechanic’s, landlord’s, ▇▇▇▇▇▇▇’▇, materialman’s, carrier’s, repairer’s and other similar Liens arising or incurred in the ordinary course of its business that are not yet due and payable or are being contested in good faith (and for which adequate accruals or reserves have been established on the Balance Sheet in accordance with GAAP);
(iii) with respect to real property, zoning ordinances and other land use restrictions or regulations, building or use restrictions, recorded easements and other restrictions of legal record;
(iv) with respect to real property, all matters set forth in the leases for such leased real property;
(v) limitations by bankruptcy or other Applicable Laws affecting creditors’ rights generally or equitable principles;
(vi) Liens securing the Closing Indebtedness or the Unpaid Transaction Expenses that must be discharged at or as promptly as practicable after Closing;
(vii) Liens created pursuant to the transactions contemplated by this Agreement;
(viii) Liens which do not materially detract from the value or materially interfere with any present or intended use of such property; and
(ix) solely with respect to the representations and warranties contained in this Article 3 made at and as of the date of this Agreement (but not at and as of the Closing Date), Liens set forth on Section 3.15 of the Company Disclosure Schedules (clauses (i) through (ix) of this Section 3.15(a) are, collectively, the “Permitted Liens”).
(b) The Company and the Subsidiaries has have good and valid title to, or in the case of leased property and leased tangible assets, a assets have rights to use pursuant to valid leasehold interest or license interests in, all of its assets constituting personal property and assets (excludingwhether tangible or intangible) reflected on the Balance Sheet or acquired after the Balance Sheet Date, except for purposes properties and assets disposed of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or since the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising Balance Sheet in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real practice. None of such property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party theretoLien, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective TimePermitted Liens.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, After giving effect to the knowledge termination of intercompany Contracts, services and other arrangements pursuant to Section 7.05, the Company, Leased Real Property property and assets owned or leased by the Company and its Subsidiaries, or any of its Subsidiaries for which they otherwise have the current or contemplated use of such real property. To the knowledge right to use, constitute all of the Company, there are no material latent defects property and assets used or material adverse physical conditions affecting held for use in connection with the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business respective businesses of the Company and its the Subsidiaries and are adequate to conduct such businesses as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Merger Agreement (Envestnet, Inc.)
Properties. (a) The Company or one All real property used in the conduct of Seller's business and that of its Subsidiaries whether owned or leased by Seller or any of Seller's Subsidiaries, has good been Previously Disclosed. All real and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes owned by Seller or its Subsidiaries or presently used by any of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which them in its respective business is being contested in good faith by appropriate proceedings, condition (iiordinary wear and tear excepted) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising and is sufficient to carry on the business of Seller and its Subsidiaries in the ordinary course of business of the Company or such Subsidiary consistent with their past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company practices. Seller and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) have good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens liens, encumbrances, charges, defaults or equities (other than equities of redemption under applicable foreclosure laws) to all of its properties and assets, real and personal, tangible or intangible, including assets and property reflected in the balance sheets contained in the Seller Regulatory Reports and in the Seller Financial Statements or acquired subsequent thereto (except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge extent that such assets and properties have been disposed of in the Companyordinary course of business, has any since the date of such condemnationbalance sheets), expropriation except (i) liens for current taxes not yet due or taking been proposedpayable, or (ii) pledges to secure deposits and other liens incurred in the ordinary course of its banking business. All real and personal property which is material to Seller's business and the business of its Subsidiaries on a consolidated basis and leased or licensed by Seller or a Subsidiary of Seller is held pursuant to leases or licenses which are valid and enforceable in accordance with their respective terms. Such existing leases and commitments to lease constitute or will constitute operating leases for both tax and financial accounting purposes and the lease expense and minimum rental commitments with respect to such leases and lease commitments are as disclosed in the notes to the Seller Financial Statements. All rents and other amounts due under such leases have been paid; Seller and its Subsidiaries are not in default in any of Leased Real Property their covenants or obligations under such leases, the leases are unmodified and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice will not terminate or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected prior to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual . All improved real property owned or legal restrictions that preclude leased by Seller or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained is in compliance with all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conductedapplicable zoning laws.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Merger Agreement (Wayne Savings Bancshares Inc /De/)
Properties. (a) The Company or one Each of its Subsidiaries the Borrowers has good and valid marketable title to, or in the case of leased property valid, subsisting and leased tangible assets, a valid enforceable leasehold interest interests in, all its Property material to its business subject only to Liens in favor of its assets constituting personal property (excluding, for purposes the Agent and Permitted Liens. All machinery and equipment of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which Credit Parties is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenantsoperating condition and repair, and other similar rights or restrictions that were not incurred in connection with all necessary replacements of and repairs thereto have be made so as to preserve and maintain the borrowing value and operating efficiency of money or the obtaining of advances or credit such machinery and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)equipment.
(b) Section 4.18(b) of the Company Disclosure Letter sets Set forth on SCHEDULE 5.5 hereto is a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) Patents, Trademarks and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”)Copyrights. Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real PropertyBorrowers owns, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemnedlicensed to use, expropriated or otherwise taken by any public authority with or without payment of compensation thereforall Patents, norTrademarks and Copyrights material to its business ("PROPRIETARY RIGHTS"), and to the knowledge of the CompanyBorrowers, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease the use thereof by the Company, any Borrowers does not infringe upon the rights of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effectPerson, except for any such noncompliance or failure to be in full force and effect infringements that, individually or in the aggregate, has not had and would could not reasonably be expected to have result in a Material Adverse Effect.
(c) SCHEDULE 5.5 clearly identifies all Patents, Trademarks and Copyrights that have been duly registered in, filed in or issued by the PTO or the United States Register of Copyrights (collectively, the "REGISTERED PROPRIETARY RIGHTS"). Each The Registered Proprietary Rights have been properly maintained and renewed in accordance with all applicable provisions of law and administrative regulations in the United States, as applicable. The Borrowers have taken commercially reasonable steps to protect their Registered Proprietary Rights and to maintain the confidentiality of all Proprietary Rights that are not generally in the public domain.
(d) As of the Company date hereof, SCHEDULE 5.5 annexed hereto contains a true, accurate and its Subsidiaries enjoys peaceful complete list of (i) all owned real property and undisturbed possession under (ii) all such leases, except for subleases or assignments of leases (together with all amendments, modifications, supplements, renewals or extensions of any thereof) of any real property leased by any Borrower, regardless of whether such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which Borrower is the subject landlord or tenant (whether directly or as an assignee or successor in interest) under such lease, sublease or assignment. Except as specified in SCHEDULE 5.5, each agreement listed in clause (ii) of Section 4.19the immediately preceding sentence is in full force and effect and the Borrowers have no knowledge of any default that has occurred and is continuing thereunder, and each such agreement constitutes the legal, valid and binding obligation of each applicable Borrower, enforceable against such Borrower in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors' rights generally or by equitable principles.
Appears in 1 contract
Properties. (a) The Except as set forth on Section 3.12(a) of the Company or one Disclosure Schedules, the Company and each of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases)marketable title, free and clear of all Liens other than Liens, to all of the properties and assets, real and personal, tangible or intangible (in each case, that is owned by the Company and used in the Business), except for (i) statutory ad valorem and real estate and other Liens for current taxes Taxes or assessments and assessments similar charges not yet past due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings, or (ii) mechanics’mechanic's, workmen’smaterial men's, repairmen’scontractor's, landlord’s, warehousemen’s, carriers’ repairman's or similar Liens arising in the ordinary course of business of (the Company or such Subsidiary consistent with past practice items in clauses (iiii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (vii) any such matters of recordcollectively, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Except as set forth in Section 4.18(b3.12(b) of the Company Disclosure Letter sets forth a true Schedule, all machinery, equipment and complete list other tangible personal property owned or leased by the Company Group or used in the Company's business are (i) in generally good operating condition in all material respects, reasonable wear and tear excepted, and (ii) not in need of all renewal or replacement, except for renewal or replacement in the ordinary course of business. Section 3.12(b) of the Company Disclosure Schedule identifies each parcel of real property owned leased by the Company or any Subsidiary. The Company has provided to Parent true, correct and complete copies of its Subsidiaries (“Owned Real Property”) all leases, subleases and other agreements under which the Company and/or any Subsidiary uses or occupies or has the right to use or occupy any real property or facility, including all property leased for the benefit modifications, amendments and supplements thereto, and such lease, sublease or other agreement is a valid, binding and enforceable obligation of the Company or any of its Subsidiaries (“Leased Real Property”). Each Company, and will continue to be a valid, binding obligation of the Company and its Subsidiaries has (i) good and marketable title enforceable immediately following the Closing in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, accordance with the terms thereof as in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, effect prior to the knowledge Closing (except as the foregoing may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to or affecting the enforcement of creditors' rights generally and legal principles of general applicability governing the availability of equitable remedies (whether considered in a proceeding in equity or at Law or under applicable legal codes)). Neither the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by nor to the Company's Knowledge, any of its Subsidiaries or any other party theretoto such leases, nor any subleases or other agreements, is in breach or default, and no event has occurred which, with notice or lapse of time or bothtime, would constitute a breach or default thereunder by or permit termination, modification or acceleration thereunder, and there are no disputes, oral arguments or forebearance programs to which the CompanyCompany or its Subsidiaries are a party in effect as to any lease or sublease. Except as set forth in Section 3.12(b) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries or owns any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Merger Agreement (Aspect Software Group Holdings Ltd.)
Properties. (a) The Company or one and each of its Subsidiaries has good and valid marketable title toto all assets and properties, whether real or personal, tangible or intangible, that it purports to own, subject to no liens, mortgages, security interests, encumbrances or charges of any kind except: (a) as noted in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property most recent Company Financial Statements; (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (ib) statutory ad valorem and real estate and other Liens liens for current taxes and assessments Taxes not yet past due delinquent or the amount or validity of which is being contested in good faith by appropriate proceedingsProceedings and for which appropriate reserves have been established and reflected on the Company Financial Statements; (c) pledges or liens required to be granted in connection with the acceptance of government deposits, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ granted in connection with repurchase or similar Liens arising reverse repurchase agreements or otherwise incurred in the ordinary course Ordinary Course of business Business; (d) the issued and outstanding shares of the common stock of Company or such Subsidiary consistent Bank pledged to West Bank in connection with past practice Company’s outstanding debt obligation to West Bank (iiithe “West Bank Note”); (e) encumbrances on real property collateral pledged to the FHLB in the nature Ordinary Course of zoning restrictions, Business; (f) easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and encumbrances that do not, individually not materially affect the use of the properties or in the aggregate, assets subject thereto or affected thereby or otherwise materially impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (vg) any such matters of record, Liens minor defects and other imperfections of irregularities in title and encumbrances that do not, individually or in the aggregate, not materially impair the continued ownership, use and operation of thereof for the assets to purposes for which they relate in are held (collectively, the business of the “Permitted Exceptions”). Company and each of its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) lessee has the right under valid and existing leases to occupy, use, possess and control any and all of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all respective property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effectit, and there exists no default under any each such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a is valid and without default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property lessee or, to the knowledge Knowledge of the Company, Leased Real Property the lessor. All buildings and structures owned by the Company or any and each of its Subsidiaries for lie wholly within the current or contemplated use of such real property. To the knowledge boundaries of the Companyreal property owned or validly leased by it, there are no material latent defects and do not encroach upon the property of, or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied otherwise conflict with the terms of all leases to which it is a partyproperty rights of, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19other Person.
Appears in 1 contract
Sources: Merger Agreement (QCR Holdings Inc)
Properties. (a) The Each of the Company or one of its Subsidiaries and each Subsidiary has good and valid marketable title to, or in the case of leased property and leased tangible assets, a has valid leasehold interest interests in, all of its assets constituting personal property (excludingwhether tangible or intangible) reflected on the Balance Sheet or acquired after the Balance Sheet Date. Except as set forth on Schedule 3.10, for purposes of this sentence, assets held under leasesPart (a), free and clear none of all Liens other than such property is subject to any Liens, except for the following (the “Permitted Liens”): (i) statutory ad valorem and real estate and other Liens for current taxes and or real property assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (and for which adequate accruals or reserves have been established on the Balance Sheet); (ii) Liens which do not materially detract from the value of such property or assets as now used, or materially interfere with any present use of such property or assets; (iii) mechanics’, workmen’scarriers’, repairmen’sworkers’, landlord’s, warehousemen’s, carriersrepairers’ or and similar statutory Liens arising or incurred in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions for amounts that were are not incurred in connection with the borrowing of money or the obtaining of advances or credit delinquent and that do notare not material, either individually or in the aggregate, impair present business operations at such properties, ; and (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31listed on Schedule 3.10, 2010 Part (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”a).
(b) Section 4.18(bSchedule 3.10, Part (b) sets forth, as of the date hereof, a description of each item of Tangible Personal Property leased by the Company or any Subsidiary with respect to which the annual lease payments for such item exceed $50,000. The Tangible Personal Property of the Company Disclosure Letter sets forth and the Subsidiaries, taken as a true whole, is in good condition consistent with industry standards and complete list in a state of good maintenance and repair (ordinary wear and tear excepted) consistent with industry standards.
(c) Schedule 3.10, Part (c) lists all real property estate leased by the Company or any Subsidiary (collectively, the “Leased Real Properties”) and the leases pursuant to which the Company leases the Leased Real Properties (collectively, the “Real Property Leases”). Except as set forth on Schedule 3.10, Part (c), the Company has not assigned or subleased any of its rights with respect to any of the Leased Real Properties to any Person other than the Subsidiaries, and the Company has the right to use the Leased Real Properties pursuant to the terms of the Real Property Leases listed on Schedule 3.10, Part (c).
(d) Schedule 3.10, Part (d) lists all real estate owned by the Company or any of its Subsidiaries Subsidiary (collectively the “Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real PropertyProperties”). Each of Except as set forth on Schedule 3.10, Part (d), the Company and its Subsidiaries has (i) good and marketable title in fee simple title to all Owned Real Property and (ii) good leasehold title to all Leased Real PropertyProperties, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemnedPermitted Lien, expropriated or otherwise taken by and has not leased any public authority with or without payment of compensation therefor, nor, to the knowledge portion of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Owned Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating Properties to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following Person other than the Effective TimeSubsidiaries.
(ce) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge All of the Companybuildings, Leased Real Property by the Company or fixtures (including, without limitation, any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures mechanical systems affixed to a building) and other buildings improvements on the Owned Real Property or Properties and Leased Real Property Properties, taken as a whole, are adequately maintained in reasonable operating condition (ordinary wear and tear excepted) without structural defects in all material respects and are in good operating respects, and, to the Company’s Knowledge, no condition and repair for the requirements exists requiring material repairs to any of the business of buildings, fixtures (including, without limitation, any mechanical systems affixed to a building) and improvements on the Company and its Subsidiaries as currently conductedOwned Real Properties.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(bSchedule 3.1(o) of the Company Disclosure Letter sets forth Schedule contains a true and complete list of all real property owned by the Company or any Subsidiary of its Subsidiaries the Company (collectively, the “Owned Real Property”) and for each parcel of Owned Real Property, contains a correct street address of such Owned Real Property.
(ii) Schedule 3.1(o) of the Company Disclosure Schedule contains a true and complete list of all real property leased for the benefit of leased, subleased, licensed or otherwise occupied (whether as tenant, subtenant or pursuant to other occupancy arrangements) by the Company or any Subsidiary of its Subsidiaries the Company (collectively, including the improvements thereon, the “Leased Real Property”), and for each Leased Real Property, identifies the street address of such Leased Real Property. Each True and complete copies of all agreements under which the Company or any Subsidiary of the Company and is the landlord, sublandlord, tenant, subtenant, or occupant (each a “Real Property Lease”) that have not been terminated or expired as of the date of this Agreement have been made available to Parent.
(iii) The Company or one of its Subsidiaries has (i) good and marketable title in fee simple title to all Owned Real Property and (ii) good valid leasehold title to estates in all Leased Real Property, in each case, Property free and clear of all Liens Encumbrances, except Permitted Liens. No parcel (i) statutory liens securing payments not yet due, (ii) such imperfections or irregularities of title, claims, liens, charges, security interests, easements, covenants and other restrictions or encumbrances as do not materially affect the use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties, and (iii) mortgages, or deeds of trust, security interests or other encumbrances on title related to indebtedness reflected on the consolidated financial statements of the Company.
(iv) Except as set forth in Schedule 3.1(o) of the Company Disclosure Schedule, none of the Owned Real Properties or the Leased Real Properties is subject to any lease, sublease, license or other agreement granting to any other person any right to use, occupancy or enjoyment of such Owned Real Property or Leased Real Property or any part thereof.
(v) Each Real Property Lease is subject in full force and effect and is valid and enforceable in accordance with its terms, and there is no material default under any Real Property Lease either by the Company or its Subsidiaries party thereto or, to any governmental decree or order to be sold or is being condemnedthe knowledge of the Company as of the date of this Agreement, expropriated or otherwise taken by any public authority with or without payment of compensation thereforother party thereto, nor, to the knowledge of the Company, has is there any such condemnationexisting event, expropriation circumstance or taking been proposed. All leases of Leased condition with respect to any Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by Lease that with the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse passage of time or the giving of notice, or both, would constitute a material default thereunder by the Company, under any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective TimeLease.
(cvi) There are no contractual does not exist as of the date of this Agreement any pending condemnation or legal restrictions eminent domain proceedings that preclude or materially restrict the ability to use affect any Owned Real Property or, to the knowledge of the Company, any such proceedings that affect any Leased Real Property by or, to the knowledge of the Company, any threatened condemnation or eminent domain proceedings that affect any Owned Real Property or Leased Real Property, and, as of the date of this Agreement, neither the Company or any of nor its Subsidiaries for have received any written notice of the current intention of any Governmental Entity or contemplated other person to take or use of such real property. any Owned Real Property or Leased Real Property.
(vii) To the knowledge of the Company, (A) there are no material latent structural, electrical, mechanical, plumbing, roof, paving or other defects or material adverse physical conditions affecting in any improvements located on any of the Owned Real Property or Leased Real Property. All plantsas could reasonably be expected, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure to be in full force and effect that, either individually or in the aggregate, to have a material and adverse effect on the use, development, occupancy or operation thereof, and (B) there are no natural or artificial conditions upon any Owned Real Property or any other facts or conditions which could reasonably be expected, in the aggregate, to have a material and adverse effect on the transferability, financability, ownership, leasing, use, development, occupancy or operation of any such real property. The Company has not had and would not received any notice from any insurance company of any defects or inadequacies in any Owned Real Property or any part thereof which could reasonably be expected to have a Material Adverse Effect. Each materially and adversely affect the insurability of such property or the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leasespremiums for the insurance thereof, except for nor has any notice been given by any insurer of any such failure to do so thatproperty requesting the performance of any repairs, individually alterations or in the aggregate, other work with which compliance has not had and would not reasonably be expected been made. Notwithstanding the foregoing, no representation set forth in this Section 3.1(o)(vii) is made with respect to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19closed facilities.
Appears in 1 contract
Sources: Merger Agreement (Haggar Corp)
Properties. (a) The Company or one of its and the Company Subsidiaries has have good and valid title to, or in the case of leased or subleased property and leased tangible assets, a assets have valid leasehold interest interests in, all of its property and assets constituting personal property (excludingwhether real, personal, tangible or intangible) reflected on the Balance Sheet or acquired after the Balance Sheet Date, except for purposes of this sentence, properties and assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or sold since the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising Balance Sheet Date in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on practices and immaterial failures to have such good title or valid leasehold interests that would not reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole. Schedule 3.14 sets forth the real property owned, leased or subleased by the Company and any Company Subsidiary. None of such property or assets is subject to any Lien, except:
(a) Liens and other matters described in or by reference in Schedule 3.14;
(b) Liens disclosed on the Balance Sheet or in the nature of zoning restrictionsnotes thereto or securing liabilities reflected on the Balance Sheet or in the notes thereto;
(c) Liens for taxes, easementsassessments and similar charges that are not yet due or are being contested in good faith;
(d) mechanic’s, rights of waymaterialman’s, encroachmentscarrier’s, restrictive covenants, repairer’s and other similar rights Liens arising or restrictions that were not incurred in connection with the borrowing ordinary course of money business or the obtaining of advances that are not yet due and payable or credit and that do not, individually or are being contested in good faith;
(e) in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; case of leased properties and (v) any such matters of recordassets, Liens and other imperfections of title matters affecting the lessors’ interests in such properties and assets; and
(f) other Liens that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets would not reasonably be expected to which they relate in the business of be material to the Company and its Subsidiaries the Company Subsidiaries, taken as currently conducted a whole (paragraphs (a)- (f) of this Section 3.14 are, collectively, the “Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Merger Agreement (Advanstar Inc)
Properties. (a) The Except as set forth in Section 5.24 of the Company Disclosure Schedule and except as would not reasonably be expected to have, individually or one in the aggregate, a Material Adverse Effect on the Company, each of the Company and its Subsidiaries has good and valid marketable title to, or in the case of leased property and leased tangible assets, a valid leasehold interest inand enforceable leasehold, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases)as applicable, free and clear of all Liens other than Liens, to all of the properties and assets, real and personal, tangible or intangible, which are reflected on the Company Balance Sheet as of the Company Balance Sheet Date or acquired after such date, except (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings, provided taxes are paid as and when required under applicable law notwithstanding any such contest (ii) pledges to secure deposits incurred in the ordinary course of business, (iii) such imperfections of title, easements and encumbrances, if any, as do not materially impair the use of the respective property as such property is used on the date hereof, and, with respect to all fee-owned property, do not materially impair the fair market value of such property, (iv) for dispositions of or encumbrances on such properties or assets in the ordinary course of business, (v) mechanics’, materialmen’s, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or carrier’s and other similar Liens and encumbrances arising in the ordinary course of business, (vi) Liens securing obligations that are reflected in such consolidated balance sheet, and changes in such obligations in the ordinary course of business of since the Company Balance Sheet Date or (vii) the lessor’s interest in any such property that is leased. All material leases pursuant to which the Company or such Subsidiary consistent any of its Subsidiaries, as lessee, leases real or personal property are valid and enforceable in accordance with past practice (iii) encumbrances on real property in the nature of zoning restrictionstheir respective terms and are bona fide, easementsarm’s length leases, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions at rents that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet constituted market rents as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) respective dates such leases were entered into. Section 4.18(b) 5.24 of the Company Disclosure Letter Schedule sets forth a true true, correct and complete list of all real property properties owned or leased by the Company or any of its Subsidiaries (“Owned Real Property”) and Subsidiaries. The Company has made available to Parent copies of all property leased for the benefit of the Company documents creating or any of its Subsidiaries (“Leased Real Property”). Each evidencing fee or leasehold interests of the Company and its Subsidiaries has (i) good and marketable title in fee simple to Subsidiaries, including all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property modifications or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice practice, (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, (iv) pledges or deposits by the Company and its Subsidiaries under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety appeal bonds to which such Person is a party, and other obligations or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business, (v) other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, materially detract from the value the properties subject thereto or affected thereby or materially impair present business operations at such properties, (ivvi) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 2012 (or the notes thereto) included in the Company SEC Documents; and (vvii) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b3.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 3.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property, that would reasonably be expected to have a Company Material Adverse Effect. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair sufficient for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Company Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Merger Agreement (Schawk Inc)
Properties. (a) The Company or one of its Subsidiaries has good title to all the properties and valid title to, or assets reflected in the case unaudited balance sheet of leased property and leased tangible assetsthe Company as at July 31, a valid leasehold interest in, all 2008 included in the Company SEC Documents as being owned by the Company or one of its assets constituting personal property Subsidiaries or acquired after the date thereof that are material to the Company’s business on a consolidated basis (excluding, for purposes except properties sold or otherwise disposed of this sentence, assets held under leasessince the date thereof in the ordinary course of business), free and clear of all Liens other than Liens, except (i) statutory ad valorem and real estate and other Liens for current taxes and assessments securing payments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising under worker’s compensation, unemployment insurance, social security, retirement and similar legislation, (iii) Liens permissible under any applicable loan agreements and indentures and (iv) such imperfections or irregularities or title, easements, rights of way and other Liens, whether or not of record, that do not materially affect the use of the properties or assets subject thereto for the purposes for which they are currently being used (the Liens in the immediately preceding clauses (i) through (iv), collectively, “Permitted Liens”). The Company or one of its Subsidiaries is the lessee of all leasehold estates reflected in the unaudited balance sheet of the Company as at July 31, 2008 included in the Company SEC Documents or acquired after the date thereof that are material to the Company’s business on a consolidated basis (except for leases that have expired by their terms since the date thereof or been assigned, terminated or otherwise disposed of in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iiipractice) encumbrances on real property and is in possession of the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenantsproperties purported to be leased thereunder, and other similar rights or restrictions that were not incurred in connection with each such lease is valid without material default thereunder by the borrowing of money or the obtaining of advances or credit and that do notlessee or, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in to the Company’s consolidated balance sheet as at December 31knowledge, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)lessor.
(b) Section 4.18(b4.17(b) of the Company Disclosure Letter sets forth a true true, correct and complete list of all leases, subleases and other agreements under which any Acquired Company uses or occupies or has the right to use or occupy, now or in the future, any real property owned by (the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real PropertyProperty Leases”). Each The Company has provided or made available to Parent true, correct and complete copies of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property Leases (including all modifications, amendments, supplements, waivers and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liensside letters thereto). No parcel of Owned Each Real Property or Leased Real Property Lease is subject to any governmental decree or order to be sold or is being condemnedvalid, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property binding and all amendments and modifications thereto are in full force and effect, and there exists no all rent and other sums and charges payable by any Acquired Company as tenants thereunder are current in all material respects. No termination event or condition or uncured default under of a material nature on the party of any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Acquired Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of Company’s knowledge, the Company, Leased landlord thereunder exists under any Real Property Lease. Each Acquired Company has a good and valid leasehold interest in each parcel of real property leased by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures it free and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms clear of all leases to which it is a party, and all such leases are in full force and effectLiens, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19Permitted Liens.
Appears in 1 contract
Sources: Merger Agreement (Ashworth Inc)
Properties. (a) The Each of the Company or one and each of its Subsidiaries has sufficiently good and valid title to, or in the case of leased property and leased tangible assets, a valid an adequate leasehold interest in, its material properties and assets (including the Real Property) in order to allow it to conduct, and continue to conduct, its business as currently conducted in all material respects. Except as set forth in Schedule 3.15 of the Company Disclosure Schedule, such material tangible properties and assets (including the Real Property) 16 are sufficiently free of Liens to allow each of the Company and each of its assets constituting personal Subsidiaries to conduct, and continue to conduct, its business as currently conducted in all material respects and the consummation of the Transactions contemplated by this Agreement will not alter or impair such ability so as to cause a Material Adverse Effect on the Company. Each of the Company and each of its Subsidiaries enjoys peaceful and undisturbed possession under all leases, except for such breaches of the right to peaceful and undisturbed possession that do not materially interfere with the ability of the Company and its Subsidiaries to conduct its business as currently conducted. Schedule 3.15 of the Company Disclosure Schedule sets forth a complete list of all real property and material interests in real property owned in fee by the Company or one of its Subsidiaries (excludingthe "Fee Properties") and sets forth all real property and interests in real property leased by the Company or one of its Subsidiaries as of the date hereof (the "Leased Properties," together with the Fee Properties, the "Real Property"). Schedule 3.15 also sets forth all locations at which properties of the Company and its Subsidiaries are located, temporarily or permanently, including all warehouses or similar Third Party storage or staging facilities for purposes such properties.
(b) All leases executed by the Company or its Subsidiaries as lessee for the Leased Properties are in full force and effect and, except as set forth on Schedule 3.15 of this sentencethe Company Disclosure Schedule, assets held the Company and its Subsidiaries have received no written notices of default from any landlord which default remains uncured as of the date hereof, and to their knowledge, neither the Company nor its Subsidiaries is in default in any material respect under any such leases).
(c) All leases executed by the Company or its Subsidiaries as lessor or sublessor for the Real Property are in full force and effect and, except as set forth on Schedule 3.15 of the Company Disclosure Schedule, there exist no other tenants of the Real Property, the Company and its Subsidiaries have received no written notices of default from any tenant which default remains uncured as of the date hereof, and to the knowledge of the Company and its Subsidiaries, no such tenant is in material default under any such leases.
(d) Except as set forth on Schedule 3.15 of the Company Disclosure Schedule, the Company and/or its Subsidiaries have good, valid, marketable and fee simple title to all the Fee Property, free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(be) Section 4.18(b) Except as set forth on Schedule 3.15 of the Company Disclosure Letter sets forth a true Schedule, all of the Real Properties have connections to sanitary sewer, water, electricity, gas, telephone and complete list of all real property owned by other necessary utilities and the Company or any of and/or its Subsidiaries do not know of any existing circumstances or conditions which would result in a termination of such access or connections for any period of time which termination would result in a Material Adverse Effect on the Company.
(“Owned Real Property”f) and all property leased for the benefit Except as set forth on Schedule 3.15 of the Company Disclosure Schedule or any of its Subsidiaries (“Leased Real Property”). Each of where a Material Adverse Effect on the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, norwould not result, to the knowledge of the Company, has any such condemnation, expropriation no fact or taking been proposed. All leases condition exists which would prohibit adequate rights of Leased access to and from the Real Property Properties from and all amendments to public highways and modifications thereto are in full force and effectroads, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each have not received written notice of any pending or threatened restriction or denial, governmental or otherwise, upon such ingress or egress which would adversely affect the operation of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19Real Properties.
Appears in 1 contract
Properties. (ai) The Company or one and each of its Subsidiaries has good and valid marketable title to, or in the case of leased property and leased tangible assets, a assets have valid and enforceable leasehold interest interests in, all of its assets constituting personal property material properties (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (iIntellectual Property) statutory ad valorem and real estate tangible assets, except for such properties and other Liens for current taxes and assessments not yet past due tangible assets as are no longer used or useful in the amount conduct of its businesses or validity as have been disposed of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property and except for defects in the nature of zoning restrictionstitle, easements, rights of way, encroachments, restrictive covenants, Taxes that are not yet delinquent and other similar rights or restrictions encumbrances that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in aggregate are not reasonably likely to have a Material Adverse Effect on the Company’s consolidated balance sheet . Except as at December 31is not reasonably likely to have a Material Adverse Effect on the Company, 2010 all such properties (or the notes theretoother than Intellectual Property) included and tangible assets, other than properties and tangible assets in which the Company SEC Documents; and (v) or any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“has a leasehold interest, are free and clear of all Liens, except for Permitted Liens”).
(bii) Section 4.18(b3.01(o)(ii) of the Company Disclosure Letter sets forth a true complete and complete accurate list as of the date of this Agreement of all material real property owned and interests in real property leased by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (each such property, a “Leased Real Property”). No real property or interest in real property is owned by the Company or any of its Subsidiaries.
(iii) With respect to each Leased Real Property, (A) as of the date of this Agreement neither the Company nor any Subsidiary has subleased, licensed or otherwise granted anyone the right to use or occupy such Leased Real Property or any portion thereof and (B) neither the Company nor any Subsidiary has collaterally assigned or granted any other security interest in any such leasehold estate or any interest therein.
(iv) Each of the Company and its Subsidiaries has (i) good and marketable title is in fee simple to compliance in all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear material respects with the terms of all Liens except Permitted Liens. No parcel of Owned Real Property or leases to Leased Real Property to which it is subject to any governmental decree a party and under which it is in occupancy, and each such material lease is a valid and binding agreement of the Company or order to its Subsidiary, as the case may be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, norand, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any each other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of enforceable against the Company Disclosure Letter relating to any Leased Real Property have been obtainedor such Subsidiary, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following as the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property orcase may be, and, to the knowledge of the Company, Leased Real Property by against the Company other party or any of parties thereto, in each case, in accordance with its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effectterms, except for any such noncompliance as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or failure other similar Laws relating to be in full force the enforcement of creditors’ rights generally and effect that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Each by general principles of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19equity.
Appears in 1 contract
Sources: Merger Agreement (Micromuse Inc)
Properties. (a) The Company or one of its Companies and the Subsidiaries has have (i) good and marketable fee title to all Owned Real Property, (ii) good and valid leasehold title to all Leased Real Property, and (iii) good and valid title to, or in the case of leased property and leased tangible assets, a assets have valid leasehold interest interests in, all property and assets (whether personal, tangible or intangible) reflected on the Balance Sheet or acquired after the Balance Sheet Date, except for properties and assets (excluding Owned Real Property and Leased Real Property) sold since the Balance Sheet Date in the ordinary course of its business. None of such Owned Real Property, Leased Real Property, property or assets constituting personal property is subject to any Lien, except:
(excludingA) Liens disclosed on Schedule 3.15;
(B) Liens not securing Indebtedness that are disclosed on the Balance Sheet or notes thereto;
(C) Liens for taxes, assessments and similar charges that are not yet due (and for purposes which adequate reserves have been established in accordance with GAAP);
(D) mechanic’s, materialman’s, carrier’s, repairer’s and other similar Liens arising or incurred in the ordinary course of this sentence, assets held under leases), free and clear of all Liens other than business (i) statutory ad valorem and real estate and other Liens for current taxes and assessments that are not yet past due and payable or the amount or validity of (ii) which is are being contested in good faith by appropriate proceedingsproceedings for which adequate reserves have been established in accordance with GAAP;
(E) other than with respect to the Real Property, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising incurred in the ordinary course of business since the Balance Sheet Date;
(F) Liens that will be discharged on or prior to the Closing Date; or
(G) with respect to the Real Property, Liens which do not and would not materially impair the occupancy, use, value or marketability of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in encumber (paragraphs (A)-(G) of this Section 3.15 are, collectively, the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) The Owned Real Property constitutes all of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Companies and the Subsidiaries, and the Leased Real Property”) and Property constitutes all property leased for the benefit of the Company real property leased, subleased, licensed, sublicensed, or any of its Subsidiaries (“Leased Real Property”)otherwise occupied by the Companies and the Subsidiaries. Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all The Owned Real Property and (ii) good leasehold title to all the Leased Real PropertyProperty together constitute all of the real property used by the Companies and its Subsidiaries in their business, in each caseand the buildings, free structures, fixtures and clear of all Liens except Permitted Liens. No parcel of other improvements on or within the Owned Real Property or and the Leased Real Property is subject are in all material respects in good operating condition and in a state of good and working maintenance and repair, ordinary wear and tear excepted, and are adequate and suitable for the purposes for which they are currently being used or intended to be used by the Companies or any Subsidiary.
(c) Neither the Companies nor any Subsidiaries has leased, subleased or licensed or otherwise granted to any governmental decree Person the right to use or order to be sold or is being condemned, expropriated or otherwise taken by occupy any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property or Owned Real Property (or portion thereof), except as disclosed on Schedule 3.15(c).
(d) All leases and all amendments similar agreements pursuant to which the Companies and modifications thereto Subsidiaries occupy the Leased Real Property are in full force and effect, unimpaired by any acts or omissions of the Companies or any Subsidiary, and there exists no default under any such lease all rent and other sums and charges payable by the Company, any of its Subsidiaries Companies or any other party theretoSubsidiary for any Leased Real Property are current, nor any event which, with no notice of default or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating termination related to any Leased Real Property have been obtainedis outstanding, all leases no termination event or condition or uncured default on the part of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual Companies or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property Subsidiary, or, to the knowledge of the CompanyCompanies or any Subsidiary, the other party or parties thereto, exists at any Leased Real Property by Property, and no event has occurred and no condition exists which, with the Company giving of notice, the lapse of time, or any of its Subsidiaries for the current both, would constitute such a default or contemplated use of such real property. To the knowledge of the Company, there termination event or condition.
(e) There are no material latent defects pending or material adverse physical conditions affecting threatened condemnation proceedings, lawsuits, administrative actions or investigations, or other legal proceedings with respect to the Owned any Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conductedimprovements thereon.
(df) Each Sellers have made available to Buyer true and complete copies of all surveys of the Real Property and title insurance policies or commitments with respect to the Real Property in the possession of Sellers and the Companies or the Subsidiaries or reasonably available to Sellers or any Company or the Subsidiaries, and its Subsidiaries has complied with Sellers are not aware of any material change in the terms facts depicted in each such survey or title insurance policy or commitment. Sellers have made available to Buyer true and complete copies of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so thatlicenses, individually or in the aggregate, has not had other occupancy agreement (including all amendments and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19guaranties related thereto).
Appears in 1 contract
Properties. (a) The Company or one To the Knowledge of its Subsidiaries has the Sellers, except as listed in Section 3.11(a)(i) of the Sellers Disclosure Letter, the Acquired Companies own good and valid marketable fee simple or leasehold title toto each of the real properties (including any and all improvements located on such properties) as identified in Section 3.11(a)(ii) of the Sellers Disclosure Letter (each, or in an “Acquired Property” and collectively, the case of leased property and leased tangible assets“Acquired Properties”), a valid leasehold interest in, which constitute all of its assets constituting personal property the real estate properties owned (excludingthe “Owned Acquired Property”) or leased (the “Leased Acquired Property” and, for purposes together with the Owned Acquired Property, the “Acquired Property”) by the Acquired Companies or their Affiliates in respect of this sentence, assets held under leases)the Acquired Business, free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictionsLiens, easements, rights of way, encroachmentsrights of first refusal, restrictive covenants, conditions, restrictions, title defects, material encroachments or other survey defects, written agreements, Laws, ordinances and regulations affecting building use or occupancy (including zoning regulations and building codes), or reservations of an interest in title (collectively, “Seller Property Restrictions”) except for Permitted Liens. Section 3.11(a)(iii) of the Sellers Disclosure Letter (i) contains a true, correct and complete schedule of all leases, subleases, licenses and other similar rights agreements under which any of the Acquired Companies is a lessee or restrictions that were not incurred in connection with sublessee (collectively, the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv“Seller Leases”) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (vii) any such matters sets forth the name and owner of record, Liens and other imperfections of title that do not, individually or in each the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)Acquired Owned Properties.
(b) To the Knowledge of the Sellers, except as listed in Section 4.18(b3.11(b)(i) of the Company Sellers Disclosure Letter sets forth a true and complete list of all real property owned by Letter, neither the Company Sellers nor the Acquired Companies have received written notice to the effect that there are (1) any condemnation or rezoning or proceedings or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company utility service moratoriums or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, norother moratoriums that are pending or, to the knowledge Knowledge of the CompanySellers, has threatened with respect to any such condemnation, expropriation or taking been proposed. All leases portion of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries the Acquired Properties or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, (2) except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, any zoning, subdivision building or similar Laws or orders that are presently being violated or will be violated by the continued maintenance, operation or use of any buildings or other improvements on any of the Acquired Properties or by the continued maintenance, operation or use of the parking areas. Assuming all consents, approvals and authorizations Except as listed in Section 4.5 3.11(b)(ii) of the Company Sellers Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure to be in full force and effect thatas, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Each Effect neither the Sellers nor the Acquired Companies have received written notice that it is currently in default or violation of any Seller Property Restrictions applicable to any of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all Acquired Properties nor does any material default or violation of such leasesnature exist. Except as set forth in Section 3.11(b)(iii) of the Sellers Disclosure Letter, except for no portion of the Acquired Property has suffered any such failure to do so that, individually material damage by fire or other casualty which has not heretofore been or is in the aggregateprocess of being repaired and restored to its original condition. To the Knowledge of the Sellers, there is no threatened or contemplated special assessment against any of the Acquired Property.
(c) The Sellers have previously provided to the Buyer a rent roll for each of the Acquired Properties (the “Rent Roll”) as of a date no earlier than February 1, 2007. The information set forth in the Rent Roll is true, correct and complete in all material respects as of the date hereof. There are no brokerage agreements or other arrangements in effect pursuant to which any material commission or other compensation will be payable to any Person after Closing in respect of the entering into or renewal of the Leases. Prior to the date hereof, the Sellers have made available to or provided the Buyer with true and complete copies of all standard form leases used in the Acquired Business.
(d) To the Knowledge of the Sellers, all water, gas, electrical, steam, compressed air, telecommunication, sanitary and storm sewage lines and systems and other similar systems serving any Acquired Property are installed and operating and are sufficient to enable each Acquired Property to continue to be used and operated in the manner currently being used and operated. To the Knowledge of the Sellers, and except as set forth in Section 3.11(d) of the Sellers Disclosure Letter, each such utility or other service is operated by the municipality in which such Acquired Property is located, and neither Sellers nor any of their respective Subsidiaries has received written notice that such utility or other service is not had and would not reasonably in compliance with applicable Laws; provided that if such utility or other service is privately owned or operated, neither the Sellers nor any of their respective Subsidiaries has received written notice that there is a requirement, or any proposed or pending requirement, that it be expected connected to have the municipal, county or other public system servicing such Acquired Property.
(e) The Transactions are not, to the Knowledge of the Sellers, subject to the offer of a Material Adverse Effect. This Section 4.18 does not relate right of first refusal to intellectual propertyany homeowners association as provided in Florida Statute 723, which is the subject or any substantially similar statutory requirement of Section 4.19any other State (each, a “Repurchase Right”), or to any purchase rights thereunder.
Appears in 1 contract
Sources: Transaction Agreement (Affordable Residential Communities Inc)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than Except (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedingsas disclosed on Schedule 4.14(a), (ii) mechanics’for Permitted Encumbrances and (iii) for property rights terminated or disposed of (e.g., workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ by sale or similar Liens arising lease termination) after the Balance Sheet Date in accordance with Article 6 or in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances and where such termination or disposition would not and does not adversely affect the ability to carry on real property in the nature of zoning restrictionsBusiness, easements, rights of way, encroachments, restrictive covenants, and other similar rights the Company or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 its Subsidiaries has (or following the notes theretoPre-Closing Restructuring will have) included in (A) good and marketable fee simple title to the Company SEC Documents; and owned real properties (vother than Easements) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(bor Seller and the Seller Affiliates with respect to the Business) Section 4.18(b) and any above-ground assets or improvements situated on each of the Company Disclosure Letter sets forth a true owned real properties, free and complete list clear of all real property owned by Encumbrances (collectively, the Company or any of its Subsidiaries (“Owned Real Property”), (B) a valid, binding and all property leased for the benefit enforceable leasehold interest in each of the Company or any of its Subsidiaries leased properties (“Leased Real Property”). Each other than Easements) of the Company and its Subsidiaries has (ior Seller and the Seller Affiliates with respect to the Business) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in any above-ground assets or improvements situated on each caseof the leased properties, free and clear of all Liens except Permitted Liens. No parcel of Encumbrances (collectively, the “Leased Real Property”, and together with the Owned Real Property or Leased Property, the “Company Real Property”), and (C) good and defensible title to those material personal properties reflected in the Financial Statements, free and clear of Encumbrances. Following the Pre-Closing Restructuring, the Company Real Property is will be validly owned or leased by the Company or one of its Subsidiaries.
(b) Except as disclosed on Schedule 4.14(b), to Seller’s Knowledge, the Company or its Subsidiary has (or following the Pre-Closing Restructuring will have) a valid, binding and enforceable real property interest in each Easement (subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to no Encumbrances other than Permitted Encumbrances) necessary for the knowledge operation of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective TimeBusiness.
(c) There are Except as disclosed on Schedule 4.14(c), there is no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property pending or, to the knowledge Seller’s Knowledge, threatened in writing, condemnation Proceeding of any part of the Company, Leased Real Property real property (excluding Easements) reflected in the Financial Statements by any Governmental Entity that would materially interfere with the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge conduct of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conductedBusiness.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pembina Pipeline Corp)
Properties. Except as disclosed in SECTION 3.20 of the Disclosure Schedule (with paragraph references corresponding to those set forth below):
(a) The Company or one of its Subsidiaries Savers has good and valid title to all debentures, notes, stocks, securities, and other assets that are of a type required to be disclosed in Schedules B through DB of its Annual Statement and that are owned by it, free and clear of all Liens.
(b) Savers owns good and indefeasible title to, or in the case of leased property and leased tangible assets, has a valid leasehold interest in, all real property used in the conduct of its assets constituting personal property (excludingbusiness, for purposes operations, or affairs or of this sentence, assets held under leases)a type required to be disclosed in Schedule A of Savers' Annual Statement, free and clear of all Liens Liens. All such real property, other than raw land, is in good operating condition and repair and is suitable for its current uses. No improvement on any such real property owned, leased, or held by Savers encroaches upon any real property of any other Person. Savers owns, leases, or has a valid right under Contract to use adequate means of ingress and egress to, from, and over all such real property. SECTION 3.20(B) of the Disclosure Schedule contains a brief description of (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity each parcel of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by Savers (the Company or any of its Subsidiaries (“"Owned Real Property”") (showing the record title holder, legal description, permanent index number, location, improvements, the uses being made thereof and all property leased for the benefit of the Company any indebtedness secured by a mortgage or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (iother Lien thereon) good and marketable title in fee simple to all Owned Real Property and (ii) each option held by Savers to acquire any real property. Complete and correct copies of any title opinions, surveys and appraisals Savers' possession or any policies of title insurance currently in force and in the possession of Savers with respect to each such parcel have heretofore been delivered to SMC.
(c) Savers owns good and indefeasible title to, or has a valid leasehold title interest in or has a valid right under Contract to use, all Leased Real Propertytangible personal property that is used in the conduct of its business, in each caseoperations, or affairs, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property All such tangible personal property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair and is suitable for the requirements of the business of the Company and its Subsidiaries as currently conductedcurrent uses.
(d) Each Savers has, and at all times after the Closing will have, the right to use, free and clear of any royalty or other payment obligations, claims of infringement or alleged infringement, or other Liens, all marks, names, trademarks, service marks, patents, patent rights, assumed names, logos, trade secrets, copyrights, trade names, and service marks that are used in the conduct of its business, operations, or affairs (of which a true and complete list and description is disclosed in SECTION 3.20(D) of the Company and its Subsidiaries has complied with the terms of all leases to which it is a partyDisclosure Schedule), and all such leases are computer software, programs, and similar systems owned by or licensed to Savers, or any Affiliate of Savers or used in full force the conduct of its business, operations, or affairs (of which a true and effect, except for any such noncompliance or failure to be complete list and description is disclosed in full force and effect that, individually SECTION 3.20(D) of the Disclosure Schedule). Savers is not in conflict with or in the aggregateviolation or infringement of, and Savers has not had and would not reasonably be expected received any notice of any conflict with or violation or infringement of or any claimed conflict with, any asserted rights of any other Person with respect to have a Material Adverse Effect. Each any intellectual property or any computer software, programs, or similar systems, including, without limitation, any of such items disclosed in SECTION 3.20(D) of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19Disclosure Schedule.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Standard Management Corp)
Properties. (a) The Company or one of its and the Subsidiaries has good do not own any real property. The Company and valid title tothe Subsidiaries have, or in the case of leased property and leased tangible assets, a valid leasehold interest ininterests in all property and assets (whether real, all of its personal, tangible or intangible) reflected on the Balance Sheet or acquired after July 3, 2016, except for properties and assets constituting personal property (excludingsold since July 3, for purposes of this sentence2016, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business consistent with past practices. None of such property or assets is subject to any Lien, except:
(i) Liens disclosed on the Company Balance Sheet;
(ii) Liens for taxes not yet due or such Subsidiary being contested in good faith (and for which adequate accruals or reserves have been established on the Balance Sheet in accordance with GAAP);
(iii) Liens securing the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons for labor, materials, supplies or rentals, if any, incurred in the ordinary course of business consistent with past practice for amounts that are not delinquent;
(iiiiv) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred Liens resulting from deposits made in connection with the borrowing of money workers’ compensation, unemployment taxes or the obtaining of advances or credit insurance, social security and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and like laws;
(v) any such matters of recordwith respect to real property, Liens zoning ordinances, restrictions, prohibitions and other imperfections requirements imposed by any Governmental Authority;
(vi) immaterial non-exclusive licenses of title that do not, individually or Intellectual Property rights granted in the aggregate, impair the continued ownership, use and operation ordinary course of business consistent with past practice;
(vii) Liens set forth in Section 3.15 of the Seller Disclosure Schedule; or
(viii) Liens which do not materially detract from the value or materially interfere with any present use of such property or assets to which they relate in (clauses (i) - (viii) of this Section 3.15(a) are, collectively, the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of The plants, buildings and structures comprising the Company Disclosure Letter sets forth a true Headquarters Facility and complete list of all real property any equipment located thereon and any other equipment owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to Subsidiary have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plantsdefects, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair (subject to ordinary wear and tear) and have been reasonably maintained consistent with standards generally followed in the industry (giving due account to the age and length of use of same, ordinary wear and tear excepted), are suitable for their present use and, in the requirements case of plants, buildings and other structures (including the roofs thereof) comprising the Headquarters Facility, are structurally sound.
(c) Except as set forth or contemplated by the Transition Services Agreement and except for services provided by the Seller and its Affiliates as of the business date hereof, the property and assets leased and owned by the Company or any Subsidiary or which they otherwise have the right to use, constitute all of the property and assets used or held for use in connection with the businesses of the Company or any Subsidiary and are adequate to conduct such businesses as currently conducted, in each case consistent with past practice, except as would not be material to the Company and its Subsidiaries taken as currently conducteda whole.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Properties. (a) The Each of the Company or one of and its Subsidiaries has good and valid fee simple title to, to or in the case of leased property and leased tangible assets, a valid leasehold interest in, estates in all of its material properties and assets constituting personal property (excluding, except for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of delinquent which is are being contested in good faith by appropriate proceedings, and Liens for taxes not yet due; (ii) pledges of assets in the ordinary course of business to secure public deposits; (iii) defects and irregularities of title and encumbrances that do not materially impair the use thereof for the purpose for which they are held; and (iv) mechanics’, materialmen’s, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or and other similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)business.
(b) Section 4.18(b) 3.20 of the Company Disclosure Letter sets forth Schedule contains a true complete and complete correct list of (i) all real property or premises owned on the date hereof, in whole or in part, by the Company or any of its Subsidiaries (collectively, the “Owned Real PropertyProperties”) and those real properties that the Company or any of its Subsidiaries is in the process of foreclosing comprising 70% of such properties (ranked by size) ,whether by judicial process or by power of sale, or otherwise in the process of acquiring title to, and all indebtedness secured by any encumbrance thereon; and (ii) all real property leased or premises leased, subleased in whole or in part, licensed or otherwise used or occupied (whether as a tenant, subtenant, or pursuant to other occupancy arrangements) by the Company or any of its Subsidiaries or which the Company or any of its Subsidiaries has the right to use or occupy (collectively, including the improvements thereon, the “Leased Properties”) together with a list of all applicable leases and the name of the applicable lessors. True and complete copies of all agreements (including all material written modifications, amendments, supplements, waivers and side letters thereto) under which the Company or any of its Subsidiaries is the landlord, sublandlord, tenant, subtenant or occupant (each a “Real Property Lease”) that have not been terminated or expired as of the date hereof have been made available to the Parent prior to the date hereof, except for those agreements under which the Company is the landlord or sublandlord and annual payments under such agreements are less than $75,000. None of such premises or properties have been condemned or otherwise taken by any public authority and, to the knowledge of the Company, no condemnation or taking is threatened or contemplated and none thereof is subject to any claim, Contract or Law that might affect its use or value for the benefit purposes now made of it. None of the premises or properties of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree current or order potential interests of third parties or other restrictions or limitations that would impair or be inconsistent with the current use of such property by the Company or its Subsidiaries, including any lease, sublease, license or other agreement, other than the Real Property Leases, granting to any other Person any right to the use, occupancy or enjoyment of such premises or properties, except as would not, individually or in the aggregate, have or be sold or is being condemnedreasonably expected to have a Company Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has received any notice of any, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, and to the knowledge of the CompanyCompany there is no, default under any restrictive covenants, restrictions and conditions affecting the Owned Properties and there has not occurred any event that with the lapse of time or the giving of notice or both would constitute such a default under any such condemnationrestrictive covenants, expropriation restrictions or taking been proposed. All leases of Leased conditions, except as would not, individually or in the aggregate, have or be reasonably expected to have a Company Material Adverse Effect.
(d) Each Real Property and all amendments and modifications thereto are Lease is in full force and effecteffect and constitutes the valid and legally binding obligation of the Company or its Subsidiaries, enforceable in accordance with its terms, and no party thereto is in default and no notice of a claim of default by any party has been delivered to the Company or is now pending, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor does not exist any event which, that with notice or lapse the passing of time time, or both, would constitute a default thereunder or excuse performance by any party thereto; provided that with respect to matters relating to any party other than the Company or its Subsidiaries, the foregoing representation is based on the knowledge of the Company.
(e) The buildings and improvements on the Owned Properties and the Leased Properties are in good condition and in a state of good and working maintenance and repair, any of its Subsidiaries or any other party theretoordinary wear and tear excepted, except asas would not, individually or in the aggregate, has not had and would not have or be reasonably be expected to have a Company Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Properties. (a) The Company All real property and interests in real property owned in fee by OUTD or one any OUTD Subsidiary (individually, an “OUTD Owned Property”) are set forth on Section 3.11(a) of its Subsidiaries the OUTD Disclosure Schedule. With respect to each material OUTD Owned Property, subject only to (A) Permitted Liens, (B) zoning, building and other similar restrictions, and (C) discrepancies, conflicts in boundary lines, shortages in area, encroachments, or any other non-monetary Liens of a minor nature: (i) OUTD or an OUTD Subsidiary has good and valid marketable fee simple title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, to all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedingsmaterial OUTD Owned Property, (ii) mechanics’there are no outstanding options or rights of first refusal in favor of any other party to purchase any material OUTD Owned Property or any portion thereof or interest therein, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property there are no leases, subleases, licenses, options, rights, concessions or other agreements affecting any portion of material OUTD Owned Properties and there are no parties (other than OUTD or any OUTD Subsidiary) in possession of any material OUTD Owned Property, and (iv) to OUTD’s knowledge, there are no physical conditions or defects at any of the nature material OUTD Owned Properties which impair or would be reasonably likely to materially impair the continued operation and conduct of zoning restrictionsthe business of OUTD and its Subsidiaries, taken as a whole. Any material reciprocal easements, operating agreements, option agreements, rights of way, encroachments, restrictive covenants, and other similar first refusal or rights or restrictions that were not incurred of first offer with respect to any OUTD Owned Property are set forth in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (ivSection 3.11(a) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)OUTD Disclosure Schedule.
(b) All real property and interests in real property leased by OUTD or any OUTD Subsidiary and any prime or underlying leases related thereto (individually, an “OUTD Leased Property”; OUTD Owned Property and OUTD Leased Property being sometimes referred to herein collectively as “OUTD Property”) are set forth on Section 4.18(b3.11(b) of the Company OUTD Disclosure Letter sets forth Schedule. OUTD or an OUTD Subsidiary has good and valid leasehold title to all OUTD Leased Property, subject only to Permitted Liens and matters described in clauses (B) and (C) of Section 3.11(a). Prior to the date hereof, a true true, correct and complete list copy of all real property owned by each lease for OUTD Leased Property, together with any amendments or modifications thereto (individually, a “OUTD Real Property Lease”) for each OUTD Leased Property has been made available to Parent. With respect to each OUTD Real Property Lease, (i) each lease is valid, binding and in full force and effect and enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws relating to or affecting the Company rights and remedies of creditors generally and subject to general principles of equity (regardless of whether considered in a proceeding in equity or at Law), (ii) neither OUTD nor any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, noror, to the knowledge of the CompanyOUTD, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party theretoto such OUTD Real Property Lease is in breach or default under such lease, nor any and no event has occurred or circumstance exists which, with notice or lapse the delivery of notice, the passage of time or both, would constitute a default thereunder by breach or default, or permit the Companytermination, modification or acceleration of rent thereunder, and (iii) neither OUTD nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any Person the right to use or occupy such OUTD Leased Property or any portion thereof, and there are no parties (other party thereto, except as, individually than OUTD or any OUTD Subsidiary) in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 possession of the Company Disclosure Letter relating to any OUTD Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Timeor any portion thereof.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned The OUTD Property comprises all Real Property or, to used in the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements conduct of the business of the Company OUTD and its Subsidiaries as currently conductedSubsidiaries.
(d) Each As of the Company and date hereof, neither OUTD nor any of its consolidated Subsidiaries has complied with the terms received notice of all leases to which it is a partyany pending, and all such leases to the knowledge of OUTD, there are in full force and effectno threatened, except for condemnation proceedings with respect to any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19OUTD Property.
Appears in 1 contract
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice practice, (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, (iv) pledges or deposits by the Company and its Subsidiaries under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety appeal bonds to which such Person is a party, and other obligations or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business, (v) other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, materially detract from the value the properties subject thereto or affected thereby or materially impair present business operations at such properties, (ivvi) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 31,2012 (or the notes thereto) included in the Company SEC Documents; and (vvii) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b3.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 3.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property, that would reasonably be expected to have a Company Material Adverse Effect. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair sufficient for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Company Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Properties. (a) The Each of the Company or one and each of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a has valid leasehold interest interests in, all of its assets constituting tangible and intangible personal property and other assets used in the Business as currently conducted (excluding, for purposes of this sentence, assets held under leasesthe “Assets”), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”). The Assets and the Real Property are, taken as a whole, in such condition and repair (ordinary wear and tear excepted) as is sufficient, to operate the Business after the Closing Date in substantially the same manner as presently conducted.
(b) Section 4.18(bSchedule 7.10(b) of the Company Disclosure Letter sets forth a true listing of any and complete list of all real property owned by the Company or any of its Subsidiaries (the “Owned Real Property”), which schedule includes the respective street addresses thereof.
(c) Schedule 7.10(c) sets forth a listing of any and all real property leased for by the benefit Company or any of its Subsidiaries (the “Leased Real Property”), which schedule includes the respective street addresses thereof. The Company or the applicable Subsidiary of the Company has a valid license or leasehold interests in all of its Leased Real Property and a valid fee ownership interest in its Owned Real Property, subject, in each case to Permitted Liens. The Company has furnished or made available to Buyer, true and correct copies of all leases and licenses (together with any amendments and modifications thereto) under which the Company or any of its Subsidiaries is the landlord, sublandlord, licensor, tenant, subtenant or occupant of real property (each a “Real Property Lease”). Each Real Property Lease was entered into at arms’ length and in the ordinary course, is in full force and effect and, to Sellers’ Knowledge, is valid and binding upon and enforceable against each of the parties thereto (subject to the General Enforceability Exceptions). Neither the Company, any of its Subsidiaries, nor to Sellers’ Knowledge, any other party to each Real Property Lease, is in material breach or material default under such Real Property Lease, and no event has occurred or failed to occur or circumstance exists that, with the delivery of notice, the passage of time or both, would constitute such a material breach or material default, or permit termination, modification or acceleration of rent under such Real Property Lease, and no party to any Real Property Lease has, since January 1, 2019, given the Company any written notice of any claim of any such material breach, default or event. There are no Proceedings, disputes or conditions affecting any Real Property that reasonably would be expected to materially curtail or interfere with the use of such property.
(d) There are no pending, or to Sellers’ Knowledge, threatened, condemnation, eminent domain or similar proceedings, or litigation or other proceedings affecting the Real Property or improvements thereon and the Company has not received any written notice from a Governmental Authority of its intention to take or use any Real Property.
(e) None of the Company or any of its Subsidiaries (“Leased has received any notice of, or other writing referring to, any requirements or recommendations by any insurance company that has issued a policy covering any part of the Real Property or by any board of fire underwriters or other body exercising similar functions, requiring or recommending any repairs or work to be done on any part of the Real Property”, which repair or work has not been completed. The use and operation of all Real Property conform to all applicable building, zoning, fire, health, safety and subdivision Laws, Environmental Laws and other Laws, and all restrictive covenants and restrictions and conditions affecting title, except for such nonconformity which is not material. All public utilities (including water, gas, electric, storm and sanitary sewage and telephone utilities) required to operate the facilities of the Company and its Subsidiaries as currently operated are available to such facilities. None of the Company or any of its Subsidiaries has received any written notice of any delinquent bills or invoices or any proposed, planned or actual curtailment of service of any utility supplied to any of its facilities.
(f) All buildings, structures, fixtures, building systems and material equipment that are part of the Real Property are, in good operating condition and repair (ordinary wear and tear excepted), and are adequate and suitable for the operation of the Business in substantially the same manner as presently conducted and are structurally sound and free of material defects.
(g) Each of the Company and each of its Subsidiaries has obtained all appropriate certificates of occupancy, Licenses, easements and rights of way, including proofs of dedication, required to use and operate the Real Property in the manner in which the Real Property is currently being used and operated. True and complete copies of all such certificates, permits and Licenses have heretofore been delivered to the Buyer or its representatives. Each of the Company and each of its Subsidiaries has all approvals, permits and Licenses (iincluding any and all Environmental Permits) good and marketable title in fee simple necessary to all Owned lease or operate the Real Property as currently leased and (ii) good leasehold title operated, as the case may be, except where the failure to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has have any such condemnationapprovals, expropriation permits or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has licenses is not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Timematerial.
(ch) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property orAll machinery, to the knowledge of the Companyequipment, Leased Real Property furniture, fixtures and other personal property and all plants, buildings, structures and other facilities, including, without limitation, office space used by the Company or any of its Subsidiaries for in the current or contemplated use conduct of such real property. To the knowledge of the Companyits Business, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair fit for operation in the requirements ordinary course of business (subject to normal wear and tear) except for any defects which will not interfere with the business conduct of normal operations of the Company and its Subsidiaries as currently conductedSubsidiaries. The Company has delivered to the Buyer or its representative true and complete copies of any leases, licenses and other material Contracts related to the Real Property.
(di) Each The Leased Real Property and the Assets are all of the real property and personal property required to conduct the Business as presently conducted. No Seller Party or any of their Affiliates (other than the Company and its Subsidiaries has complied Subsidiaries) owns any Assets or any other asset used in, or necessary in connection with the terms of all leases conduct of, the Business.
(j) To Sellers’ Knowledge, there are no adverse physical characteristics applicable to the Real Property, such as, without limitation, sink holes, which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each adversely affect development of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19Real Property.
Appears in 1 contract
Properties. (a) The Except as would not reasonably be expected to result in a material expense or liability to the Company or one any Company Subsidiary or otherwise interfere in any material respect with the conduct of its their respective businesses being conducted on the date hereof, the Company and the Company Subsidiaries has good have good, valid and valid marketable title to, or in the case of leased property and leased tangible assets, a valid leasehold interests in or other comparable contract rights in or relating to all personal properties that are material to the Company’s business on a consolidated basis, and all such personal properties, other than personal properties in which the Company or any Company Subsidiary has a leasehold interest inor other comparable contract right, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), are free and clear of all Liens other than Liens, except (i) statutory ad valorem and real estate and other Liens for current taxes and assessments Taxes not yet past due and payable, that are payable without penalty or the amount or validity of which is that are being contested in good faith by appropriate proceedingsand for which adequate reserves have been recorded, (ii) Liens for assessments and other governmental charges or landlords’, carriers’, warehousemen’s, mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriersworkers’ or and similar Liens arising incurred in the ordinary course of business, (iii) Liens incurred in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing workers’ compensation, unemployment insurance and other types of money or the obtaining of advances or credit and that do not, individually social security or in the aggregateordinary course of business to secure the performance of tenders, impair present business operations at such propertiesstatutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations and (iv) existing Liens disclosed that are not reasonably likely to adversely interfere in a material way with the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, current use and operation of the properties or assets to which they relate in the business of the Company and its Subsidiaries as currently conducted encumbered thereby (collectively, “Permitted Liens”).
(b) Section 4.18(bExcept as would not reasonably be expected to result in a material expense or liability to the Company or any Company Subsidiary or otherwise interfere in any material respect with the conduct of their respective businesses being conducted on the date hereof:
(i) (x) the Company or a Company Subsidiary has good and marketable fee simple title to, and holds a policy of title insurance (which policy of title insurance, to the knowledge of the Company Disclosure Letter sets forth a true Company, is valid and complete list effective) on, all of all the real property owned by the Company or any of its the Company Subsidiaries (the “Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except (other than Permitted Liens. No parcel ), (y) neither the Company nor any Company Subsidiary has leased or otherwise granted to any person the right to use or occupy all or any material portion of such Owned Real Property, and (z) neither the Company nor any Company Subsidiary has granted any outstanding options, rights of first refusal, rights of first offer or other third party rights to purchase such Owned Real Property or Leased Real Property is any material portion thereof,
(ii) to the knowledge of the Company, the Company or a Company Subsidiary has a good and valid leasehold or other occupancy interest in all real property subject to any governmental decree a Company Lease (such leased real property, together with the Owned Real Property, the “Real Property”), free and clear of all Liens (other than Permitted Liens), and each Company Lease is valid, binding and enforceable on the Company or order to be sold or is being condemnedthe Company Subsidiary, expropriated or otherwise taken by any public authority with or without payment of compensation thereforas the case may be, norand, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property each other party thereto and all amendments and modifications thereto are is in full force and effect, except for those Company Leases that pursuant to their terms have expired or been terminated (other than termination by one party to a Company Lease for breach by another party to such Company Lease), and there exists no except that such enforceability may be (i) limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws of general application relating to or affecting creditors’ rights generally and (ii) subject to general equitable principles (whether considered in a proceeding in equity or at law),
(iii) none of the Company or any of the Company Subsidiaries has received written notice of any default under any such lease by Company Lease, which default continues on the Companydate of this Agreement, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased there is no event that with the giving of notice or the passage of time would constitute a default under any Company Lease,
(iv) to the knowledge of the Company, all buildings, facilities, structures and fixtures included in the Real Property by (giving due account to the Company or any age and length of its Subsidiaries for the current or contemplated use of such real property. To same, ordinary wear and tear excepted) are in good operating condition and repair (except for ordinary, routine maintenance and repairs that are not material in nature or cost), and
(v) to the knowledge of the Company, there are no material latent defects pending or material adverse physical conditions affecting threatened (i) appropriation, condemnation, eminent domain or like proceedings related to the Owned Real Property or Leased (ii) proceedings to change the zoning classification, variance, special use, or other applicable land use law of any portion of the Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Properties. (a) The Company or one of its Subsidiaries has good Seller Disclosure Schedule 3.09(a) correctly describes all real property leased by Seller under the Net Lease Agreement dated October 31, 1995 by and valid among Landlord's predecessor in interest, Opus/Puget Western I, L.L.C., Seller and Seller's predecessor in interest, McCaw Property Investments, Inc., as amended by Amendment 1 to Net Le▇▇▇ ▇greement dated January 3, 1996 and Amendment 2 to Net Lease Agreement dated September 18, 1996 (as amended, the "Lease"), the rights and obligations under which Lease are being assigned to and assumed by Acquisition Subsidiary (the "Real Property"), any title to, or insurance policies and surveys with respect thereto in the case possession of leased property Seller, and leased tangible assetsany Liens thereon granted by or, a valid leasehold interest into Seller's Knowledge, all imposed by operation of its assets constituting personal property (excludinglaw through Seller, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or specifying the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business name of the Company lessor or such Subsidiary consistent with past practice (iii) encumbrances on real property in sublessor, the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, lease term and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)basic annual rent.
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries Seller has (i) good and marketable title in fee simple to all Owned Real Property Purchased Assets and (ii) good has a valid leasehold title to all Leased interest in the Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property Purchased Asset is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party theretoLien, except asLiens which do not materially detract from the value of such Purchased Asset, individually or in materially interfere with any present use of such Purchased Asset, including Liens for current Taxes not yet due and payable (the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time"Permitted Liens").
(c) There are no contractual or legal restrictions that preclude or materially restrict To Seller's Knowledge, (i) the ability to use any Owned plants, buildings and structures included in the Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are have no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plantsdefects, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and (ii) are in good operating condition and repair and have been reasonably maintained consistent with standards generally followed in the industry (giving due account to the age and length of use of same, ordinary wear and tear excepted), (iii) are adequate and suitable for the requirements of the business of the Company their present uses and its Subsidiaries as currently conducted(iv) are structurally sound.
(d) Each To Seller's Knowledge, the plants, buildings and structures included in the Real Property currently have access to (i) public roads or valid easements over private streets or private property for such ingress to and egress from all such plants, buildings and structures and (ii) water supply, storm and sanitary sewer facilities, telephone, gas and electrical connections, fire protection, drainage and other public utilities, in each case as is necessary for the conduct of the Company Business as it has heretofore been conducted.
(e) To Seller's Knowledge, the use, occupancy and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each operation of the Company Real Property as currently used, occupied and its Subsidiaries enjoys peaceful and undisturbed possession under all such leasesoperated, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual propertyconstitute a nonconforming use under applicable building, which is the subject of Section 4.19zoning, subdivision and other land use and similar laws, regulations and ordinances.
Appears in 1 contract
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b3.10(a) of the Company Disclosure Letter sets forth a true and complete list of identifies all real property owned by the Company or any of its the Company Subsidiaries (the “Company Owned Real PropertyProperties”). Section 3.10(a) of the Company Disclosure Letter identifies all real property leased by the Company or the Company Subsidiaries as lessee or sublessee (the “Company Leased Properties” together with the Company Owned Properties, the “Company Properties”). Section 3.10(a) of the Company Disclosure Letter lists every real property for which the Company or the Company Subsidiaries has a Contract to buy or lease any real property at some future date. Except as provided on Section 3.10(a) of the Company Disclosure Letter, the Company or the Company Subsidiary set forth on Section 3.10(a) of the Company Disclosure Letter owns fee simple title to each of the Company Owned Properties and has a valid leasehold interest in each of the Company Leased Properties free and clear of any rights of way, easements, encumbrances written agreements or reservations of an interest in title (collectively, “Property Restrictions”) and all property leased other Liens, except for the benefit following (collectively, the “Permitted Liens”): (i) Property Restrictions imposed or promulgated by Legal Requirements with respect to real property and improvements, including zoning regulations, provided they do not materially adversely affect the current use of any Company Property, (ii) Liens and Property Restrictions disclosed on existing title reports or existing surveys (in either case copies of which title reports and surveys have been delivered or made available to Parent), except for those Liens set forth on Section 3.10(a)(ii) of the Disclosure Letter (which Liens no longer encumber the Company Properties), (iii) mechanics’, carriers’, workmen’s, repairmen’s and similar Liens, incurred in the Ordinary Course of Business and which (x) are not yet due and payable, (y) are duly budgeted to be paid and (z) do 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, (iv) Liens for Taxes that are not yet due and payable, (v) any current Liens for indebtedness related to the Company Properties set forth on Section 3.10(a) of the Company Disclosure Letter, and (vi) the Space Leases (as defined herein); provided further that no Lien not in existence on the date hereof or Property Restriction (except for those described in clauses (i), (iii), (iv), (v) and (vi) above) shall be a Permitted Lien if it will materially impair business operations conducted by the Company and the Company Subsidiaries. To the Knowledge of the Company or the Company Subsidiaries, each Company Permit or other agreement, easement or other right (such agreement shall be included as a Material Contract (as defined herein)) which is necessary to permit the lawful use and operation of the buildings and improvements on any of its Subsidiaries (“Leased Real Property”). Each of the Company Properties or which is necessary to permit the lawful use and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear operation of all Liens except Permitted Liens. No parcel driveways, roads and other means of Owned Real Property or Leased Real Property is subject egress and ingress to and from any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, Company Properties has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property obtained and all amendments and modifications thereto are is in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in .
(b) Section 4.5 3.10(b) of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases lists each of Leased Real Property shall remain valid the Company Properties which are under development as of the date hereof and binding in accordance with their terms following describes the Effective Timestatus of such development as of the date hereof.
(c) There are no contractual Section 3.10(c) of the Company Disclosure Letter lists each policy of title insurance for the Company Properties (each a “Company Title Insurance Policy”), including the insurer and policy number of such Company Title Insurance Policy. Except as provided on Section 3.10(c) of the Company Disclosure Letter, each Company Title Insurance Policy has been issued insuring the Company’s or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, applicable Company Subsidiary’s fee simple title to the knowledge of applicable Company Owned Properties or leasehold interests in the Company, applicable Company Leased Real Property Properties in amounts at least equal to the purchase price thereof paid by the Company or any of its Subsidiaries for the current Company Subsidiary therefor (or contemplated use of such real property. To the knowledge value of the Companyleasehold interest at the time of entering into the applicable Lease), there are subject only to Permitted Liens, and such policies are, at the date hereof, valid, in full force and effect and no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Propertyclaim has been made against any such policy. All plants, warehouses, distribution centers, structures A true and other buildings on the Owned Real Property or Leased Real Property are adequately maintained correct copy of each Company Title Insurance Policy and back-up document referred to in all material respects and are in good operating condition and repair for the requirements of the business each Company Title Insurance Policy has been previously delivered to Parent. Section 3.10(c) of the Company Disclosure Letter lists each survey for the Company Properties and its Subsidiaries as currently conducteda true and correct copy of each such survey has been previously delivered to Parent.
(d) Each Except as provided on Section 3.10(d) of the Company Disclosure Letter, the Company has no Knowledge (i) of any material structural defects relating to any Company Property which costs more than $100,000 to repair; (ii) of any Company Property whose building systems are not in working order in any material respect and its costs more than $100,000 to repair; (iii) of any physical damage to any Company Property in excess of $100,000 for which there is no insurance in effect covering the cost of the restoration; (iv) of any current renovation or uninsured restoration to any Company Property the cost of which exceeds $250,000; or (v) of items referred to in Section 3.10(d) (without giving effect to the dollar thresholds set forth therein) which aggregate for the Company and the Company Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each more than $300,000.
(e) Except as set forth on Section 3.10(e) of the Company and its Disclosure Letter, neither the Company nor any of the Company Subsidiaries enjoys peaceful and undisturbed possession under all such leaseshas received any written notice nor has Knowledge to the effect that (i) any condemnation or rezoning proceedings are pending or threatened with respect to any of the Company Properties or (ii) any zoning, except building or similar Legal Requirement is or will be violated in any material respect for any such failure property 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.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Letter, none of the Company Properties are managed by the Company or a wholly-owned Company Subsidiary.
(g) The rent roll of the Company Properties as of the date hereof that is set forth on Section3.10(g) of the Company Disclosure Letter (the “Rent Roll”) lists each Lease under which the Company or a Company Subsidiary is the lessor or the sublessor (a “Space Lease”). No Person occupies any portion of the Company Properties except pursuant to do so that, individually a Space Lease and no Space Lease has been assigned or sublet except as set forth on the Rent Roll. All information set forth in the aggregateRent Roll is true, correct and complete as of the date hereof. The Company has not had delivered to Parent true, correct and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual propertycomplete copies of all Space Leases, which is including all amendments, modifications, supplements, renewals, extensions and guarantees related thereto, as of the subject of Section 4.19date hereof.
Appears in 1 contract
Sources: Merger Agreement (Ventas Inc)
Properties. (a) Schedules 1.1-B and 1.1-C correctly identifies all Owned Real Property and all Leased Real Property, used or held for use exclusively in the operation of the Business (collectively, the “Real Property”).
(b) The Company or one of its Subsidiaries has Combined Companies have good and valid (with respect to Owned Real Property) marketable (subject to any Permitted Liens) title to, or in the case of any Leased Real Property or leased property personal property, have valid leasehold interests in, all Assets, except for properties and leased tangible assets, a assets sold in the Ordinary Course of Business or where the failure to have such good and marketable title or valid leasehold interest inwould not reasonably be expected to be material to the Business. No Asset is subject to any Lien, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than except:
(i) statutory ad valorem and real estate and other Liens disclosed on Section 5.14(b)(i) of the Seller’s Disclosure Schedule;
(ii) Liens disclosed on the Balance Sheet or securing liabilities reflected on the Balance Sheet;
(iii) Liens for current taxes and assessments Taxes, that are not yet past due or the amount or validity of which is are being contested in good faith by appropriate proceedings, and for which adequate reserves have been established in accordance with GAAP;
(iiiv) mechanics’, workmenmechanic’s, repairmenmaterialman’s, landlordcarrier’s, warehousemen’s, carriers’ or repairer’s and other similar Liens arising or incurred in the ordinary course Ordinary Course of business Business or that are not yet due and payable or are being contested in good faith and for which adequate reserves have been made;
(v) undetermined or inchoate Liens constituting or securing the payment of expenses which were incurred incidental to the conduct of the Company operations of the Business or such Subsidiary consistent with past practice the operation of the Assets;
(iiivi) encumbrances on real property in the nature of zoning restrictionsLiens created by law or which arise from leases, easements, rights rights-of-way or other real property interests for compliance with the terms of such leases, easements, rights-of-way or other real property interests (including the payment of rental fees or other charges); provided, that the same individually and in the aggregate do not materially interfere with the operation or use of the Assets or the Business as currently operated;
(vii) all reservations of record of minerals (without right of surface entry) in and under or that may be produced from any of the lands constituting part of the Real Property or on which any of the Assets are located;
(viii) all easements, rights-of-way and restrictive covenants of record, and all discrepancies, shortages in area, conflicts in boundary lines, encroachments or protrusions, or overlapping of improvements, defects, irregularities and other matters affecting the Real Property or the Facilities which (A) individually and in the aggregate do not materially detract from the value of the Assets as currently used or materially interfere with the operation or use of the Assets or the Business as currently operated and (B) would not reasonably be expected to be material to the Business;
(ix) any defect that has been cured by applicable statutes of limitations or statutes for prescription;
(x) any defect affecting (or the termination or expiration of) any easement, right-of-way, encroachmentsleasehold interest, restrictive covenantslicense or other real property interest which is replaced prior to Closing at Seller’s sole cost by an easement, and right-of-way, leasehold interest, license or other similar real property interest constituting part of the Assets covering substantially the same rights to use the land or restrictions that were not incurred the portion thereof used by Seller in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets Business or Facilities;
(xi) rights reserved to which they relate or vested in any Governmental Authority to control or regulate any of the Assets or the operations of the Business or Facilities and any rights under Applicable Law, including any building or zoning ordinances;
(xii) existing leases, licenses and similar Contracts disclosed on Section 5.14(b)(xii) of the Seller’s Disclosure Schedule;
(xiii) acts done or suffered to be done by, and judgments against, Buyer or its Affiliates and those claiming by, through or under Buyer or its Affiliates;
(xiv) any Contract entered into by Seller or the Combined Companies in accordance with the terms of this Agreement;
(xv) all matters of record as of the Effective Date, but excluding any monetary Liens, purchase options and rights of first refusal;
(xvi) Liens incurred in the business Ordinary Course of Business since the Balance Sheet Date; or
(xvii) other Liens which (A) individually and in the aggregate do not materially detract from the value of the Company and its Subsidiaries Assets as currently conducted used or materially interfere with the operation or use of the Assets or the Business as currently operated and (B) would not reasonably be expected to be material to the Business (the items identified in clauses (i)—(xvii) of this Section 5.14(b) are, collectively, the “Permitted Liens”).
(bc) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property Leases and (ii) good leasehold title Easements is a valid and binding agreement of MRCI or GDPC, as the case may be, and is in full force and effect, and none of MRCI or GDPC or, to all Leased Real Propertythe knowledge of Seller, any other party thereto, is in each case, free and clear default or breach in any respect under the terms of all Liens except Permitted Liens. No parcel of Owned any such Real Property Lease or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation thereforEasement, nor, to the knowledge of the CompanySeller, has any event occurred that with the passage of time or the giving of notice or both would create a default under the terms of any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property Lease or Easement by any party thereto, except for any such failures to be valid and all amendments and modifications thereto are binding or in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries defaults or any other party thereto, nor any event which, with notice or lapse of time or both, breaches which would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except asnot reasonably be expected to have, individually or in the aggregate, has not had and a Material Adverse Effect.
(d) Except as would not reasonably be expected to have a Material Adverse Effect. Assuming all consentsbe material to the Business, approvals and authorizations listed in Section 4.5 neither of the Company Disclosure Letter relating to Combined Companies has received any Leased Real Property have been obtained, all leases written notice (i) for assessments for public improvements against any of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the CompanyProperty, Leased Real Property by the Company or Easements or (ii) regarding any pending condemnation, eminent domain or similar proceeding affecting all or any portion of its Subsidiaries for the current or contemplated use any of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Property, Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conductedEasements.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Share Purchase Agreement (Calumet Specialty Products Partners, L.P.)
Properties. (a) The None of the Company Entities owns any real property (excluding, for the avoidance of doubt, any indirect interest any Company Entity may be considered to own through its relationship with any Client in real property held by such Client or one its Subsidiaries). Each of its Subsidiaries the Company Entities has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest interests in, all property and assets (whether real, personal, tangible or intangible) reflected on the Balance Sheet or acquired after the Balance Sheet Date or otherwise necessary to conduct the business of its the Company Entities as conducted on the date hereof, except for properties and assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or sold since the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising Balance Sheet Date in the ordinary course of business of the Company or such Subsidiary consistent with past practice practices. None of such property or assets are subject to any Lien, except:
(iiia) encumbrances Liens disclosed on real property the Balance Sheet or notes thereto or securing liabilities reflected on the Balance Sheet or notes thereto; (b) Liens for taxes, assessments and similar charges that are not yet due or are being contested in good faith and are properly reserved for on the nature of zoning restrictionsBalance Sheet; (c) mechanic’s, easementsmaterialman’s, rights of waycarrier’s, encroachments, restrictive covenants, repairer’s and other similar rights Liens arising or restrictions that were not incurred in connection with the borrowing ordinary course of money business or the obtaining of advances that are not yet due and payable or credit and that do not, individually are being contested in good faith; or (d) Liens incurred in the aggregateordinary course of business since the Balance Sheet Date (the Liens referred to in clauses (a) through (d) of this Section 3.19(a), impair present business operations at such propertiescollectively, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) The real property demised by the leases (the “Real Property Leases”) described on Section 4.18(b3.19(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by Schedule (the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”) constitutes all of the real property leased, subleased, occupied or otherwise used by the Company Entities as of the date hereof. All of the Real Property Leases are valid, binding and enforceable in all material respects in accordance with their respective terms. The Company has made available to the Buyer true and correct copies of each of the Real Property Leases (including all written modifications, amendments, supplements, waivers and side letters thereto in the Company’s possession). Each of Except as would not reasonably be expect to be, individually or in the aggregate, material to the Company and its Subsidiaries has (i) Entities, taken as a whole, the Company Entities have good and marketable title in fee simple leasehold interests to all Owned Real Property and (ii) good leasehold title to all of the Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned there is not under any Real Property or Leased Real Property is subject to Lease any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken existing default by any public authority with of the Company Entities, or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Merger Agreement (Virtus Investment Partners, Inc.)
Properties. (a) The Seller has made available to the Buyer true and complete copies of documents evidencing:
(i) each parcel of real property currently owned by any Target Group Company (a “Group Company Owned Property”), the entity owning such parcel (each a “Land Holding Company”) and the current use of such parcel; and
(ii) each parcel of real property leased or one subleased by any Target Group Company (together with all buildings and improvements thereon, each, a “Group Company Leased Property” and together with the Group Company Owned Properties, the “Properties”) the entity leasing or subleasing such parcel and the current use of its Subsidiaries such parcel.
(b) The Seller has good and valid title tomade available to the Buyer, or in respect of each Group Company Owned Property located in the case PRC, true and complete copies of leased property each Land Contract (if any) and leased tangible assetseach Land and Property Certificate (if any) in respect of or related to such Property. To Seller’s Knowledge, the Land and Property Certificate in respect of each such Property contains true and accurate particulars of such Property and each of the Land and Property Certificates and Land Contracts was duly issued or duly entered into, as applicable, in accordance with applicable Law and remains valid, effective and enforceable. To Seller’s Knowledge, the Target Group Companies and each other party to a Land Contract have been and are in compliance with all the terms of each Land Contract relating to the Group Company Owned Properties during all times such Properties are owned by the Target Group Companies. To Seller’s Knowledge, the Target Group Companies are and have been in compliance with all Land and Property Certificates relating to the Group Company Owned Properties.
(c) Each Land Holding Company is the sole legal and beneficial owner of the Property as shown in the documents delivered under Section 3.15(a)(i), and such Land Holding Company has valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases)and freely transferable title to such Property, free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which any Encumbrances. There is being contested no written adverse claim by any Person in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business respect of the ownership of the Group Company Owned Properties or such Subsidiary consistent with past practice (iii) encumbrances on real property in any part thereof or any interest therein and none of the nature of zoning restrictions, easementsLand Holding Companies has granted any outstanding options, rights of wayfirst offer, encroachments, restrictive covenants, and other rights of refusal or similar preemptive rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) to purchase any such matters of record, Liens and other imperfections of title that do not, individually Property or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)any part thereof or any interest therein.
(bd) Section 4.18(b) To Seller’s Knowledge, the Target Group Companies have a valid and enforceable leasehold interest in each of the Group Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each caseProperties, free and clear of all Liens except Permitted Liens. No any Encumbrances.
(e) None of the Target Group Companies has received written notice (i) of any actual, threatened or imminent changes in the present zoning of any parcel of Owned Real Property any of the Properties or Leased Real Property is subject any part thereof or any restrictions, limitations or regulations applicable to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the CompanyProperties, has or (ii) of any such pending or threatened condemnation, expropriation expropriation, sequestration or taking been proposed. All leases similar action affecting any of Leased Real Property and all amendments and modifications thereto are the Properties or any part thereof.
(f) No Target Group Company has (i) received any written notice that is in full force and effect, and there exists no default under any easement agreement or other similar agreement in which such lease by the Company, Target Group Company is a part which default remains uncured or otherwise unresolved or (ii) entered into any Contract to acquire or dispose of its Subsidiaries any interest in land or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, premises that has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Timecompleted.
(cg) There To Seller’s Knowledge, all utilities, equipment and facilities necessary for the operations of each Property and each part thereof are no contractual or legal restrictions that preclude or materially restrict the ability in good working condition, subject to use any Owned Real Property or, ordinary wear and tear having regard to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated age and use of such real propertyutilities, equipment and facilities. To The Land Holding Companies are the knowledge respective sole legal and beneficial owners of all of the Companyutilities, there are no material latent defects equipment and facilities attached to or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings located on the applicable Group Company Owned Real Property or Leased Real Property are adequately maintained in all material respects Properties, free and are in good operating condition and repair for the requirements clear of the business of the Company and its Subsidiaries as currently conductedany Encumbrances.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Sale and Purchase Agreement (GreenTree Hospitality Group Ltd.)
Properties. (a) The Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, as of the date hereof, the Company or one of its Subsidiaries the other Acquired Companies has good and valid marketable, indefeasible, fee simple title to, or in the case of leased property and leased tangible assets, a has valid leasehold interest interests in, all of its assets constituting tangible personal property (excludingand assets reflected on the Company Balance Sheet or acquired after the Company Balance Sheet Date, except for purposes personal property and assets sold since the Company Balance Sheet Date in the ordinary course of this sentencebusiness consistent with past practices. None of such property or assets is subject to any Lien, assets held under leases), free and clear of all Liens other than except:
(i) Liens disclosed on the Company Balance Sheet;
(ii) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due and not yet delinquent or the amount or validity of which is Taxes that are being contested in good faith by appropriate proceedingsproceedings (and for which accruals or reserves have been established in accordance with GAAP on the Company Balance Sheet);
(iii) Liens imposed by Applicable Laws such as materialmen’s, (ii) mechanics’, carriers’, workmen’s and repairmen’s liens (and in the case of materialmen’s, repairmen’s, landlord’s, warehousemen’smechanics’, carriers’ ’, workmen’s and repairmen’s liens, such Liens are for amounts not yet delinquent or similar that are being contested in good faith by appropriate proceedings and for which accruals or reserves have been established in accordance with GAAP on the Company Balance Sheet);
(iv) Liens arising in the ordinary course under conditional sale agreements, capital leases or other title retention agreements with a vendor or lessor;
(v) restrictions on transfer of business of the Company or such Subsidiary consistent with past practice securities imposed by applicable state and U.S. federal securities laws; or
(iiivi) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that Liens which do not, individually or in the aggregate, impair materially detract from the value or materially interfere with any present business operations at or intended use of such properties, property or assets (ivclauses (i) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and through (v) any such matters of recordthis Section 4.13(a) are, Liens and other imperfections of title that do notcollectively, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property The equipment owned by the each Acquired Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property that is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, material to the knowledge operation of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease business by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute Acquired Companies as currently conducted taken as a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, whole has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plantsdefects, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are is in good operating condition and repair for and has been reasonably maintained (giving due account to the requirements age and length of the business use of the Company same, ordinary wear and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a partytear excepted), and all such leases are in full force is adequate and effect, except suitable for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19present uses.
Appears in 1 contract
Properties. (a) The Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, as of the date hereof, the Company or one of its Subsidiaries the other Acquired Table of Contents Companies has good and valid marketable, indefeasible, fee simple title to, or in the case of leased property and leased tangible assets, a has valid leasehold interest interests in, all of its assets constituting tangible personal property (excludingand assets reflected on the Company Balance Sheet or acquired after the Company Balance Sheet Date, except for purposes personal property and assets sold since the Company Balance Sheet Date in the ordinary course of this sentencebusiness consistent with past practices. None of such property or assets is subject to any Lien, assets held under leases), free and clear of all Liens other than except:
(i) Liens disclosed on the Company Balance Sheet;
(ii) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount not yet delinquent or validity of which is Taxes that are being contested in good faith by appropriate proceedingsproceedings (and for which accruals or reserves have been established in accordance with GAAP on the Company Balance Sheet);
(iii) Liens imposed by Applicable Laws such as materialmen’s, (ii) mechanics’, carriers’, workmen’s and repairmen’s liens (and in the case of materialmen’s, repairmen’s, landlord’s, warehousemen’smechanics’, carriers’ ’, workmen’s and repairmen’s liens, such Liens are for amounts not yet delinquent or similar that are being contested in good faith by appropriate proceedings and for which accruals or reserves have been established in accordance with GAAP on the Company Balance Sheet);
(iv) Liens arising under conditional sale agreements, capital leases or other title retention agreements with a vendor or lessor;
(v) restrictions on transfer of securities imposed by applicable state and U.S. federal securities laws;
(vi) with respect to Intellectual Property Rights, nonexclusive licenses granted in the ordinary course of business business;
(vii) Liens granted pursuant to the Credit Agreement and related guarantees, pledge agreements or security documents that have or may be entered into pursuant to the terms of the Company or such Subsidiary consistent with past practice Credit Agreement; or
(iiiviii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that Liens which do not, individually or in the aggregate, impair materially detract from the value to the Acquired Companies or materially interfere with any present business operations at or intended use or occupancy of such propertiesproperty or assets by the Acquired Companies (clauses (i) through (viii) of this Section 4.13 are, (iv) existing Liens disclosed in collectively, the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property The equipment owned by the each Acquired Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property that is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, material to the knowledge operation of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease business by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute Acquired Companies as currently conducted taken as a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are whole is in good operating condition and repair for and has been reasonably maintained (giving due account to the requirements age and length of the business use of the Company same, ordinary wear and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a partytear excepted), and all such leases are in full force is adequate and effect, except suitable for any such noncompliance or failure 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 Material Adverse Effectits present uses. Each Table of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.Contents
Appears in 1 contract
Sources: Merger Agreement (Brocade Communications Systems Inc)
Properties. (a) The Company or one of its Subsidiaries BAYOU ROAD has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, disclosed all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenantsowned, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do notall material real estate leased, individually or in the aggregateif any, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company BAYOU ROAD or any of its Subsidiaries (“Owned Real Property”) and all property except any thereof first acquired or leased for after the benefit of the Company or any of its Subsidiaries (“Leased Real Property”date hereof as permitted by Section 6.1 hereof). Each of the Company BAYOU ROAD and its Subsidiaries has (i) good record and marketable title in fee simple to all Owned Real Property material real estate owned by it, and (ii) good has valid leasehold title to interests in all Leased Real Propertymaterial real estate leased by it, in each case, free and clear of all Liens except for Permitted LiensLiens (as hereinafter defined) or as otherwise disclosed. No parcel The current use of Owned Real Property such material owned and leased real estate by BAYOU ROAD or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries does not violate in any material respect the certificate of occupancy thereof or any other party thereto, nor any event which, with notice material local zoning or lapse of time similar land use or both, would constitute a default thereunder by the Company, any of government regulations.
(b) BAYOU ROAD and its Subsidiaries have good and valid title to all material assets (other than the real property which is represented and warranted in paragraph (a) above) shown on the Balance Sheet or any acquired since the date of the Balance Sheet in the ordinary course of business, in each case free and clear of all Liens except for Permitted Liens or as otherwise disclosed. There is no material defect in the normal operating condition and repair of the equipment owned or leased by BAYOU ROAD and its Subsidiaries.
(c) As used in this Agreement, "Permitted Liens" means (i) Liens shown on the Balance Sheet as securing specified liabilities or obligations as to which no default exists, (ii) mechanics', carriers', workmen's, repairmen's or other party theretolike Liens arising or incurred in the ordinary course of business with respect to liabilities that are not yet due or delinquent, except asor which are being contested in good faith by appropriate proceedings, (iii) Liens for Taxes, assessments and other governmental charges which are not due and payable or which may hereafter be paid without penalty or which are being contested in good faith by appropriate proceedings (for which adequate reserves have been made in the Balance Sheet), (iv) Liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance, social security, retirement and other similar legislation for sums not yet due and payable, (v) Liens permitted to be incurred on and after the date hereof in accordance with Section 6.1 hereof, (vi) leases to third parties, and (vii) other imperfections of title or encumbrances, which, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 materially detract from the value of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual property or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases asset to which it is a partyrelates or materially impair the ability of Principal Solar, and all such leases are Inc. or BAYOU ROAD to use the property or asset to which it relates in full force and effect, except for any such noncompliance or failure substantially the same manner as it was used by BAYOU ROAD prior 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19Closing Date.
Appears in 1 contract
Properties. (a) The Except as set forth in Section 5.25 of the Company Disclosure Schedule and except as would not reasonably be expected to have, individually or one in the aggregate, a Material Adverse Effect on the Company, each of the Company and its Subsidiaries has good and valid marketable title to, or in the case of leased property and leased tangible assets, a valid leasehold interest inand enforceable leasehold, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases)as applicable, free and clear of all Liens other than Liens, to all of the properties and assets, real and personal, tangible or intangible, which are reflected on the Company Balance Sheet as of the Company Balance Sheet Date or acquired after such date, except (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings, provided taxes are paid as and when required under applicable Law notwithstanding any such contest, (ii) such imperfections of title, easements and encumbrances, if any, as do not materially impair the use of the respective property as such property is used on the date hereof, and, with respect to all fee-owned property, do not materially impair the fair market value of such property, (iii) for dispositions of or encumbrances on such properties or assets in the ordinary course of business, (iv) mechanics’', materialmen's, workmen’s's, repairmen’s, landlord’s's, warehousemen’s's, carriers’ or carrier's and other similar Liens and encumbrances arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictionsbusiness, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) Liens securing obligations that are reflected in such consolidated balance sheet, and changes in such obligations in the ordinary course of business since the Company Balance Sheet Date or (vi) the lessor's interest in any such matters of record, Liens and other imperfections of title property that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets is leased. All material leases pursuant to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all Subsidiaries, as lessee, leases real or personal property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding enforceable in accordance with their respective terms following the Effective Time.
(c) There and are no contractual or legal restrictions bona fide, arm's length leases, at rents that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge constituted market rents as of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all respective dates such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19were entered into.
Appears in 1 contract
Properties. (a) The Company or one A description of all fixed assets which are material to BancFirst and its Subsidiaries considered as a whole owned by each of BancFirst and BancFirst Bank (directly or through the BancFirst Subsidiaries) has been delivered to UNB (hereinafter referred to as the "BancFirst Personal Property"). All BancFirst Personal Property has been maintained in good working order, ordinary wear and tear excepted. BancFirst, BancFirst Bank, or a BancFirst Subsidiary owns and has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, to all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases)the BancFirst Personal Property, free and clear of all Liens any mortgage, Lien, pledge, charge, claim, conditional sales or other than agreement, lease, right or encumbrance, except:
(i) statutory ad valorem As set forth in Section 4.11(a) of the BancFirst Disclosure Schedule;
(ii) To the extent stated or reserved against in the BancFirst Audited Financials or the BancFirst Interim Financials; and
(iii) Such other exceptions which are not material in character or amount and do not materially detract from the value of or interfere with the use of the properties or assets subject thereto or affected thereby.
(b) A description of each parcel of real property owned by BancFirst, BancFirst Bank, or a BancFirst Subsidiary (other than real property taken by BancFirst Bank in consideration of debts previously contracted) is set forth in Section 4.11(b) of the BancFirst Disclosure Schedule (hereinafter referred to individually as a "BancFirst Parcel" and collectively as the "BancFirst Real Properties"). Either BancFirst, BancFirst Bank, or a BancFirst Subsidiary is the owner of each BancFirst Parcel in fee simple and has good and marketable title to each such BancFirst Parcel, free of any Liens, claims, charges, encumbrances or security interests of any kind, except:
(i) As set forth in Section 4.11(b) of the BancFirst Disclosure Schedule;
(ii) Liens for real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice delinquent; and
(iii) encumbrances on real property in the nature of zoning restrictionsUtility, access and other easements, rights of way, encroachmentsrestrictions and exceptions, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing none of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, which impair the continued ownership, BancFirst Real Properties for the use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently being conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Timethereon.
(c) There are no contractual A description of all real property leased by BancFirst, BancFirst Bank, or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge a BancFirst Subsidiary is set forth in Section 4.11(c) of the Company, Leased Real Property by BancFirst Disclosure Schedule (hereinafter referred to as the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or "BancFirst Leased Real Property"). All plantsExcept as set forth in Section 4.11(c) of the BancFirst Disclosure Schedule, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained Leases create, in all material respects accordance with their terms, valid, binding and are in good operating condition and repair for the requirements assignable leasehold interests of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.either BancFirst or
Appears in 1 contract
Sources: Merger Agreement (Unb Corp/Oh)
Properties. (a) The Company All real property and interests in real property owned in fee by IM or one any IM Subsidiary (individually, an “IM Owned Property”) are set forth on Section 4.11(a) of its Subsidiaries the IM Disclosure Schedule. With respect to each material IM Owned Property, subject only to (A) Permitted Liens, (B) zoning, building and other similar restrictions, and (C) discrepancies, conflicts in boundary lines, shortages in area, encroachments, or any other non-monetary Liens of a minor nature: (i) IM or an IM Subsidiary has good and valid marketable fee simple title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, to all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedingsmaterial IM Owned Property, (ii) mechanics’there are no outstanding options or rights of first refusal in favor of any other party to purchase any material IM Owned Property or any portion thereof or interest therein, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property there are no leases, subleases, licenses, options, rights, concessions or other agreements affecting any portion of material IM Owned Properties and there are no parties (other than IM or any IM Subsidiary) in possession of any material IM Owned Property, and (iv) to IM’s knowledge, there are no physical conditions or defects at any of the nature material IM Owned Properties which impair or would be reasonably likely to materially impair the continued operation and conduct of zoning restrictionsthe business of IM and its Subsidiaries, taken as a whole. Any material reciprocal easements, operating agreements, option agreements, rights of way, encroachments, restrictive covenants, and other similar first refusal or rights or restrictions that were not incurred of first offer with respect to any IM Owned Property are set forth in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (ivSection 4.11(a) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)IM Disclosure Schedule.
(b) All real property and interests in real property leased by IM or any IM Subsidiary and any prime or underlying leases related thereto (individually, an “IM Leased Property”; IM Owned Property and IM Leased Property being sometimes referred to herein collectively as “IM Property”) are set forth on Section 4.18(b4.11(b) of the Company IM Disclosure Letter sets forth Schedule. IM or an IM Subsidiary has good and valid leasehold title to all IM Leased Property, subject only to Permitted Liens and matters described in clauses (B) and (C) of Section 4.11(a). Prior to the date hereof, a true true, correct and complete list copy of all real property owned by each lease for IM Leased Property, together with any amendments or modifications thereto (individually, an “IM Real Property Lease”), has been made available to OUTD. With respect to each IM Real Property Lease, (i) each lease is valid, binding and in full force and effect and enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws relating to or affecting the Company rights and remedies of creditors generally and subject to general principles of equity (regardless of whether considered in a proceeding in equity or at Law), (ii) neither IM nor any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, noror, to the knowledge of the CompanyIM, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party theretoto such IM Real Property Lease is in breach or default under such lease, nor any and no event has occurred or circumstance exists which, with notice or lapse the delivery of notice, the passage of time or both, would constitute a default thereunder by breach or default, or permit the Companytermination, modification or acceleration of rent thereunder, and (iii) neither IM nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any Person the right to use or occupy such IM Leased Property or any portion thereof and there are no parties (other party thereto, except as, individually than IM or any IM Subsidiary) in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 possession of the Company Disclosure Letter relating to any IM Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Timeor any portion thereof.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned The IM Property comprises all Real Property or, to used in the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements conduct of the business of the Company IM and its Subsidiaries as currently conductedSubsidiaries.
(d) Each As of the Company and date hereof, neither IM nor any of its consolidated Subsidiaries has complied with the terms received notice of all leases to which it is a partyany pending, and all such leases to the knowledge of IM, there are in full force and effectno threatened, except for condemnation proceedings with respect to any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19IM Property.
Appears in 1 contract
Properties. (a) Section 3.9(a) of the Company Disclosure Schedule sets forth a correct and complete list and address of all real property owned by the Company and the Company Subsidiaries as of the date of this Agreement (all such real property, together with 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, are individually referred to herein as “Company Property” and collectively referred to herein as the “Company Properties”). The Company and/or the Company Subsidiaries own good, valid and marketable fee simple title to each of the Company Properties, in each case free and clear of any Liens, title defects, contractual restrictions, covenants or one reservations of its Subsidiaries has good interests in title (collectively, “Property Restrictions”), except for (i) Permitted Liens and valid title to(ii) Property Restrictions imposed or promulgated by Law or by any Governmental Entity which are customary and typical for similar properties provided, or however, in the case of leased property clauses (i) and leased tangible assets(ii) above, that such matters would not, individually or in the aggregate, reasonably be likely to have a valid leasehold interest inCompany Material Adverse Effect (such matters in clauses (i) and (ii) above, all of its assets constituting personal property (excludingcollectively, for “Permitted Encumbrances”). For purposes of this sentenceAgreement, assets held under leases), free and clear of all Liens other than “Permitted Liens” means (i) statutory ad valorem Liens for Taxes not yet due or delinquent or that are being contested in good faith by appropriate proceedings and real estate for which there are adequate reserves on the financial statements of the Company (if such reserves are required pursuant to GAAP), (ii) easements, covenants, rights-of-way, claims, restrictions and other Liens for current taxes encumbrances of record set forth in the Company Title Insurance Policies, (iii) inchoate materialmen’s, mechanics’, carriers’, workmen’s and assessments repairmen’s liens arising in the usual, regular and ordinary course and not yet past due and payable or the amount or validity payment of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in through negotiations and for which there are adequate reserves on the ordinary course of business financial statements of the Company or (if such Subsidiary consistent with past practice (iiireserves are required pursuant to GAAP) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet mortgages and deeds of trust granted as at December 31, 2010 (or the notes thereto) included security for financings listed in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)Disclosure Schedule.
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Properties. (a) The Company Apart from the effect of excluding the Excluded Assets from the Purchased Assets, the Purchased Assets constitute all of the property, fixtures, machinery, equipment and assets necessary for, or one used or held for use in the Business, and such Purchased Assets are sufficient to conduct the Business in the ordinary course and as conducted since January 1, 2018. Seller has good, defensible title and, in the case of its Subsidiaries has good and valid the Clovis Facility, insurable (to the Knowledge of Seller) title to, or or, in the case of leased personal property and the Leased Real Property, has valid leasehold interests in, all Purchased Assets (whether real, personal, tangible or intangible) (including any Purchased Assets set forth or referred to in Section 2.01 of the Seller Disclosure Schedule), and no Purchased Asset is subject to any Lien (except for Permitted Liens). Upon consummation of the transactions contemplated hereby, Buyer will have acquired good, defensible title and, in the case of the Clovis Facility, insurable title to, or, in the case of leased tangible assetspersonal property and the Leased Real Property, a valid leasehold interest in, all each of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases)the Purchased Assets, free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens except for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(ba) Section 4.18(bSection 3.16(a) of the Company Seller Disclosure Letter Schedule sets forth a true and complete list of all any real property owned leased, subleased, licensed or otherwise occupied by Seller and used in the Company or any of its Subsidiaries Business as currently conducted (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has .
(b) (i) good and marketable title in fee simple Seller does not owe any brokerage commissions or finder’s fees with respect to all Owned Real Property and any Purchased Asset; (iii) good leasehold title Seller has not leased, subleased, licensed or otherwise granted any Person the right to all use or occupy the Clovis Facility (or any portion thereof), any Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree other Purchased Asset (or order to be sold any portion thereof); (i) Seller (or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries Affiliate’s) possession and quiet enjoyment of the Clovis Facility, any Leased Real Property, or any other party theretoPurchased Asset has not been disturbed; (i) all of the fixtures, nor any event whichmachinery, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or and equipment and any other party thereto, except as, individually or personal property included in Purchased Assets located at the aggregate, has not had Clovis Facility and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding maintained in accordance with their terms following normal industry practices and are in all material respects adequate and suitable for the Effective Timepurposes for which they are currently being used and are in all material respects in good operating condition and repair, subject to ordinary wear and tear and taking into account the age of such assets; and (i) Seller has not granted to any third party or parties any options, rights of first offer, or rights of first refusal related to any interest in the Clovis Facility or any Leased Real Property.
(c) There are no contractual material repairs, replacements or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, regularly scheduled maintenance relating to the knowledge of the CompanyClovis Facility, any Leased Real Property by the Company (or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects Purchased Asset) that have not been completed and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conductedbeing delayed or deferred.
(d) Each Seller has not received notice (whether written or oral) that the Clovis Facility, any Leased Real Property, or any portion thereof is subject to any pending suit for condemnation or expropriation or other taking by any Governmental Authority or that any such condemnation or 33 other taking is threatened or contemplated, and no such condemnation or expropriation or other taking is pending or, to the Knowledge of Seller, threatened.
(e) Except as disclosed in Section 3.16(f) of the Company and its Subsidiaries has complied with the terms of all leases to which it is a partySeller Disclosure Schedule, and all such leases are in full force and effect, except for any such noncompliance or failure to be in full force and effect thatother than immaterial, individually or in the aggregate, repairs, replacements and maintenance, no construction, improvements, refurbishments or build-outs (“Improvements”) work is required to be done, and Seller (or Affiliate thereof) has not had received any notice from any third party (including any Governmental Authority) asserting or suggesting that any such work is required to be done, upon or in connection with the Clovis Facility, any Leased Real Property (or any other Purchased Asset). All required documents, Filings or other instruments documenting the completion and would compliance of such Improvements required to be submitted to any Person(s) (including any Governmental Authority) with respect thereto have been made. All Improvements required to be performed before the Closing will have been performed in a good, timely and workmanlike manner.
(f) Seller (or Affiliate thereof) has not reasonably be expected to have a Material Adverse Effect. Each received notice from any Governmental Authority, or any insurance company or board of fire underwriters, of any defects in or in respect of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leasesClovis Facility or any Leased Real Property or that any violation of any fire, except for any such failure to do so thatbuilding, individually use, occupancy or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19zoning law exists.
Appears in 1 contract
Properties. (a) The Company or one of Bi▇▇▇▇, together with its Subsidiaries has Subsidiaries, have in all material respects good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its the real properties and tangible assets constituting personal property (excludingi) reflected or disclosed in Bi▇▇▇▇’▇ ▇nnual Report filed on Form 10-K for the fiscal year ended December 31, for purposes 2016 or (ii) acquired after December 31, 2016 (other than assets disposed of this sentencesince December 31, assets held under leases2016 in the Ordinary Course of business), free and clear of all Liens other than (iu) statutory ad valorem and real estate and other Liens for current taxes Taxes and assessments that are not yet past due or the amount or validity of which is for Taxes that are being contested in good faith by appropriate proceedingsproceedings and for which adequate reserves have been established in accordance with GAAP, (iiv) Liens securing Indebtedness reflected on the most recent consolidated balance sheet of Bi▇▇▇▇ ▇ncluded in the Bi▇▇▇▇ ▇EC Documents filed with the SEC prior to the date of this Agreement or incurred by Bi▇▇▇▇ ▇r any of its Subsidiaries in the Ordinary Course of business since the date of such consolidated balance sheet, (w) Liens imposed or promulgated by Laws with respect to real property and improvements, including zoning regulations, which are not violated by the current use or occupancy of the real property, (x) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, ’s and carriers’ or similar Liens arising in the ordinary course Ordinary Course of business of the Company or such Subsidiary consistent with past practice Bi▇▇▇▇ ▇r any of its Subsidiaries for amounts which are not due and payable, (iiiy) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, Liens and other similar rights imperfections of title or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and record that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and Bi▇▇▇▇ ▇r any of its Subsidiaries as currently conducted and (z) Liens set forth on Section 4.19(a) of the Bi▇▇▇▇ ▇isclosure Letter (the “Permitted Bi▇▇▇▇ ▇ermitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and Bi▇▇▇▇ ▇nd its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Bi▇▇▇▇ ▇aterial Adverse Effect. Each of the Company and Bi▇▇▇▇ ▇nd its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Bi▇▇▇▇ ▇aterial Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Properties. (a) Section 4.14(a) of the Company Disclosure Letter contains a true and complete list of all material real property owned by the Company and its Subsidiaries (the “Company Owned Real Property”). The Company or one and each of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets respect to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) Subsidiaries, insurable fee simple interest in, or valid license or leasehold interests in, all their respective properties and assets, in all property leased material respects, except for the benefit of Permitted Liens. All such properties and assets, other than properties and assets in which the Company or any of its Subsidiaries has a license or leasehold interest, are free and clear of all conditions, encroachments, easements, rights of way, restrictions and Liens, except for Permitted Liens. Except as set forth on Section 4.14(a) of the Company Disclosure Letter, the Company has furnished or made available to Parent prior to the date hereof copies of each deed for parcel of the Company Owned Real Property and all title insurance policies relating to the Company Owned Real Property in the possession or control of the Company.
(b) The chart attached as Section 4.14(b) of the Company Disclosure Letter identifies each of the leases, site leases, subleases, and occupancy agreements in which either of the Company or its Subsidiaries has a leasehold interest, license or similar occupancy rights, whether as lessor or lessee (together with any material amendments thereto, each, a “Company Lease” and, collectively, the “Company Leases”; the property covered by Company Leases under which either the Company or its Subsidiaries is a lessee is referred to herein as the “Company Leased Real Property”; the Company Leased Real Property, together with the Company Owned Real Property, collectively being the “Company Property”). Each such Company Lease is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Propertyor a Subsidiary of the Company, in each caseas the case may be, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, norand, to the knowledge of the Company, of the other party or parties thereto, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting creditors generally or by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at Law), and the Company and each of its Subsidiaries has any complied with the terms of all Company Leases, except for such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are failures to be in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries effect or any other party thereto, nor any event which, with notice or lapse of time or both, to be in compliance that would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except asnot, individually or in the aggregate, has not had and be reasonably expected to have a Company Material Adverse Effect. The Company or each respective Subsidiary of the Company is in possession of the properties or assets purported to be leased under its respective leases, except as would not reasonably be expected to have a Company Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual The Company has provided to Parent true and complete in all material respects excerpts of all Company Leases under which the Company or legal its Subsidiaries is a lessee that contain (i) radius restrictions that preclude or materially restrict noncompete provisions, (ii) restrictions on assignment, subletting or other transfer or (iii) restrictions on changes in the ability direct or indirect ownership of interests of the tenant.
(d) None of the Company nor its Subsidiaries, nor their respective Affiliates, officers, directors, employees or consultants has leased, subleased, assigned, licensed or otherwise granted to any Person the right to use or occupy any material portion of the Company Property. Except for Permitted Liens, none of the Company Owned Real Property oris subject to any option or other agreement granting to any Person or entity any right to obtain title to all or any portion of such property.
(e) Except as would not, individually or in the aggregate, be reasonably expected to have a Company Material Adverse Effect, to the knowledge of the Company, Leased Real Property by all buildings, structures, fixtures, building systems and equipment, and all components that are part of the Company or any Property are in material compliance with all applicable Laws and are in good operating condition in all material respects and in a state of its Subsidiaries good and working maintenance and repair in all material respects, and are reasonably adequate and reasonably suitable for the current or contemplated use operation of such real propertythe Company’s business. To the knowledge of the Company, there are is no pending or written threat of condemnation or similar action affecting any of the material latent defects or material adverse physical conditions affecting Company Property.
(f) Section 4.14(f) of the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures Company Disclosure Letter sets forth the true and other buildings on the Owned Real Property or Leased Real Property are adequately maintained correct in all material respects aging and are in good operating condition and repair for the requirements valued cost of the business Company’s retail inventory. Since February 2, 2013 through the date of this Agreement, the Company has purchased retail inventory in a manner consistent in all material respects with the ordinary past practices of the Company and its Subsidiaries as currently conductedCompany.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Merger Agreement
Properties. (a) A true and complete list of all of the real property owned by any of the Companies and their Subsidiaries is set forth in Section 3.15(a) of the Disclosure Schedule (collectively, the “Owned Real Property”), and, except as set forth in Section 3.15(a) of the Disclosure Schedule, neither the Companies nor any of their Subsidiaries is a party to any agreement or option to purchase any real property or interest therein.
(b) A true and complete list of all of the real property that is leased, subleased or licensed by any of the Companies or their Subsidiaries, with annual rental payments of at least $100,000 per year under the leases or subleases, is set forth in Section 3.15(b) of the Disclosure Schedule (collectively, the “Leased Real Property”) (the Owned Real Property and the Leased Real Property are collectively referred to herein as the “Property”). Each lease (including amendments thereto) relating to the Leased Real Property shall be deemed a Material Contract for all purposes pursuant to this Agreement.
(c) The Company or one of its Companies and their Subsidiaries has have good and valid title tomarketable title, or the valid and enforceable right to use, all machinery, equipment, furniture and other tangible assets used in the case ordinary course of leased property their business and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property operations (excluding, for purposes of this sentence, assets held under leases“Tangible Property”), free and clear of all Liens any Encumbrance, other than Permitted Encumbrances.
(id) statutory ad valorem The Companies and real estate their Subsidiaries own, lease or license all Property and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising Tangible Property that are used in the ordinary course of their business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)operations.
(be) There are no contracts or options to sell the Owned Real Property or any portion of the Owned Real Property which are presently in effect other than those set forth in Section 4.18(b3.15(a) of the Company Disclosure Letter sets Schedule. Except as set forth a true and complete list in Section 3.15(e) of all real property owned by the Company Disclosure Schedule, none of the Companies or any of its their Subsidiaries (“has entered into any leases with respect to the Owned Real Property”) and all property leased for the benefit Property or subleases of the Company or any of its Subsidiaries (“Leased Real Property or otherwise granted a license to any Person to use the Property”). Each .
(f) The Companies and the Subsidiaries of the Company and its Subsidiaries has (i) Companies have good and marketable fee title in fee simple to all the Owned Real Property and (ii) good a valid leasehold title to all interest in the Leased Real Property, as provided in the applicable Lease, in each case, free and clear of all Liens except Permitted Liens. No parcel any mortgages, liens, pledges, security interests or similar charges, defects, exceptions, rights of Owned Real Property way, restrictions, covenants, claims, similar matters, or Leased Real Property is subject to other encumbrance of any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are nature whatsoever in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use respect of such real property. To the knowledge of the Companyproperty or asset (collectively, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect“Encumbrances”), except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19Permitted Encumbrances.
Appears in 1 contract
Properties. (a) Neither the Company nor any of its Subsidiaries (i) owns any real property or (ii) is obligated or bound by any options, obligations or rights of first refusal or contractual rights to sell, lease or acquire any real property (except under the Real Property Leases).
(b) Section 3.17(b) of the Company Disclosure Letter sets forth a true, correct and complete list of each Real Property Lease of which the Company and its Subsidiaries have the right to use as lessee, sublessee, licensee or occupant (such real property, the “Leased Real Property”). The Company or one of its Subsidiaries has good the right to use the Leased Real Property for the full term of each Real Property Lease (and valid title to, any renewal options) relating thereto. The Company or in the case one of leased property and leased tangible assets, its Subsidiaries has a valid leasehold interest in, in all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases)the Leased Real Property, free and clear of all Liens Liens, mortgages, deeds of trust, encumbrances, encroachments, easements, rights of way, leases and title defects, other than the following (“Permitted Liens”): (i) statutory ad valorem and real estate and other Liens liens for current taxes and assessments Taxes not yet past due or delinquent (or which may be paid without interest or penalties) or the validity or amount or validity of which is being contested in good faith by appropriate proceedingsproceedings and for which adequate reserves have been maintained in accordance with GAAP, (ii) mechanics’, workmen’scarriers’, repairmen’sworkers’, landlord’s, warehousemen’s, carriersrepairers’ and other similar liens arising or similar Liens arising incurred in the ordinary course of business relating to obligations as to which there is no default on the part of the Company or such Subsidiary consistent any of its Subsidiaries, or the validity or amount of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been maintained in accordance with past practice GAAP, (iii) encumbrances on real property zoning, entitlement, conservation restriction and other land use and environmental regulations promulgated by Governmental Entities, (iv) liens granted to any lender at the Closing in connection with any financing by Parent of the nature transactions contemplated hereby, (v) any right, interest, lien, title or other Liens of zoning a lessor or sublessor under any Real Property Lease, and (vi) all exceptions, restrictions, easements, rights imperfections of waytitle, encroachmentscharges, restrictive covenantsrights-of-way and other Liens that do not materially interfere with the present use or occupancy of the Leased Real Property. Neither the Company nor any of its Subsidiaries has assigned, transferred or pledged any interest in any of the Real Property Leases.
(c) To the knowledge of the Company, the Leased Real Property is not subject to any pending suit for condemnation or other taking by any Governmental Entity, and no such condemnation or other similar rights taking is threatened in writing. The use and occupancy of the Leased Real Property by the Company or restrictions that were one of its Subsidiaries and the conduct of the business thereat as presently conducted does not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do violate any applicable Laws (including zoning Laws), except as would not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consentsThere are no leases, approvals and authorizations listed in Section 4.5 subleases, licenses or other agreements granting to any Person the right of use or occupancy of any portion of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased (except under the Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real propertyLeases). To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting all buildings, structures, facilities and improvements located on the Owned Real Property or Leased Real Property. All plants, warehousesincluding buildings, distribution centersstructures, structures facilities and other buildings on the Owned Real Property or Leased Real Property improvements which are adequately maintained under construction (collectively, “Improvements”) comply in all material respects with valid and are in good operating condition and repair current certificates of occupancy or similar Permits to the extent required by Laws for the requirements use thereof, and conform in all material respects with all applicable Laws. The Improvements are adequate for continued use in the manner in which they are presently being used. The Leased Real Property constitutes all of the business of real property used or occupied by the Company and its Subsidiaries as currently conductedSubsidiaries.
(d) Each of the The Company and each Subsidiary has good and marketable title to all of its Subsidiaries has complied with the terms respective tangible personal property, free and clear of all leases to which it is a partyLiens, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19other than Permitted Liens.
Appears in 1 contract
Properties. (a) The Company All real and personal property owned by DELTA or one any of its Subsidiaries has or presently used by any of them in their respective business is in a good condition (ordinary wear and valid title to, or tear excepted) and is sufficient to carry on their respective business in the case ordinary course of leased property business consistent with their past practices. DELTA has good, marketable and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases)indefeasible title, free and clear of all Liens Liens, to all of the material properties and assets, real and personal, reflected on the consolidated balance sheet of DELTA as of June 30, 2015, or acquired after such date, other than properties sold by DELTA or any of its Subsidiaries in the ordinary course of business, except (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of payable for which is being contested in good faith by appropriate proceedingsadequate reserves have been established, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising pledges to secure deposits incurred in the ordinary course of its banking business of the Company or such Subsidiary consistent with past practice practice, (iii) encumbrances on real property such imperfections of title, easements and encumbrances, if any, as are not material in the nature of zoning restrictionscharacter, easements, rights of way, encroachments, restrictive covenants, amount or extent and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in as reflected on the Company’s consolidated balance sheet of DELTA as at December 31of June 30, 2010 (2015. All real and personal property which is material to DELTA’s business on a consolidated basis and leased or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned licensed by the Company DELTA or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit is held pursuant to leases or licenses which are valid obligations of the Company DELTA or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, norand, to the knowledge of the CompanyDELTA’s Knowledge, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding obligations of the other parties thereto, enforceable against DELTA or such Subsidiary of DELTA, and to DELTA’s Knowledge, the other parties thereto, in accordance with their terms following the Effective Time.
(c) There are no contractual in each case, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or legal restrictions that preclude affecting creditor’s rights or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real propertygeneral equity principles). To the knowledge of the CompanyDELTA’s Knowledge, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company DELTA and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force compliance with all applicable health and effectsafety related requirements for the real property owned by any of them, except for any such noncompliance or failure to be in full force and effect thatincluding those requirements under the Americans with Disabilities Act of 1990, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19as amended.
Appears in 1 contract
Properties. (ai) The Except as set forth in the Company or one of its Subsidiaries Letter, the Company (A) has good good, valid and valid marketable title toto all the properties and assets reflected in the latest audited financial statements included in the Company Financial Statements as being owned by the Company, or acquired after the date thereof (except properties sold or otherwise disposed of since the date thereof in the case ordinary course of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leasesbusiness), free and clear of all Liens mortgages, pledges, security interests, claims, liens, charges, options or other than encumbrances of any nature whatsoever (iincluding, without limitation, in the case of real property, easements and rights-of-way) (collectively, "Liens"), except (x) statutory ad valorem and real estate and other Liens for current taxes and assessments securing payments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedingsdue, (iiy) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising on assets of the Company incurred in the ordinary course of a commercial banking business and (z) such Liens and imperfections or irregularities of title that do not materially affect the use of the Company properties or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights assets subject thereto or restrictions that were not incurred in connection with the borrowing of money affected thereby or the obtaining of advances or credit and that do not, individually or in the aggregate, otherwise materially impair present business operations at such properties, and (ivB) existing Liens disclosed is the lessee of all leasehold estates reflected in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) latest audited financial statements included in the Company SEC Documents; Financial Statements or acquired after the date thereof (except for leases that have expired by their terms since the date thereof) and (v) any such matters of record, Liens and other imperfections of title that do not, individually or is in the aggregate, impair the continued ownership, use and operation possession of the assets properties purported to which they relate in be leased thereunder, and each such lease is valid without default thereunder by the business of lessee or, to the Company and its Subsidiaries as currently conducted (“Permitted Liens”)Company's knowledge, the lessor.
(bii) Section 4.18(b) of The Company has set forth in the Company Disclosure Letter sets forth a true and complete list the street address of all real property currently owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder including properties held by the Company as a result of foreclosure or repossession or carried on the Company, any of its Subsidiaries or any 's books as "other party thereto, except as, individually or real estate owned" (the "Current Real Properties"). Except as set forth in the aggregateCompany Letter, has not had the Current Real Properties are in generally good condition and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding well maintained in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability reasonable and prudent business practices applicable to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by like facilities. Except as set forth in the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the CompanyLetter, there are no material latent defects proceedings, claims, disputes or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements any of the business Current Real Properties or leasehold interests of the Company and its Subsidiaries that, insofar as currently conducted.
(d) Each of the Company and its Subsidiaries has complied reasonably can be foreseen, may curtail or interfere with the terms use of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Properties. (a) The Company or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases), free and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances Set forth on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(bSchedule 4.2(t)(i) of the Company Cornerstone Disclosure Letter sets forth Memorandum is a true true, correct, and complete list of all real property owned or leased by the Company Bancshares or Cornerstone, or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit their Subsidiaries, as of the Company or any date of its Subsidiaries this Agreement (including without limitation property carried on the books of Cornerstone as “Leased Other Real PropertyEstate Owned”). Each Bancshares and Cornerstone and each of the Company and its their Subsidiaries has (i) have good and marketable title in fee simple to all Owned Real Property and real property owned by them (ii) good leasehold title to all Leased Real Propertyincluding any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case, case free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments Liens, except Liens for current Taxes and modifications thereto are assessments not yet due and payable for which adequate reserves have been established. Each lease pursuant to which Bancshares or Cornerstone or any of their Subsidiaries leases real property is valid and binding and in full force and effect, and there exists no default under any such lease by the Company, neither Bancshares nor Cornerstone nor any of its Subsidiaries or their Subsidiaries, nor any other party to any such lease, is in breach or default under or in violation of any provision of any such lease. The Cornerstone Parties have previously delivered or made available to the SmartFinancial Parties a true, correct, and complete copy of each such lease, including any amendments thereto. All real property owned or leased by Bancshares or Cornerstone, or any of their Subsidiaries, is in good condition (normal wear and tear excepted), conforms with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Cornerstone Parties to be adequate for the current business of the Cornerstone Parties and their Subsidiaries. None of the buildings, structures, or other improvements located on any real property owned or leased by Bancshares or Cornerstone, or any of their Subsidiaries, encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way.`
(ii) None of the real property owned or leased by Bancshares or Cornerstone, or any of their Subsidiaries, nor any event whichbuilding, with notice structure, fixture, or lapse of time improvement thereon, is the subject of, or both, would constitute a default thereunder by the Companyaffected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Cornerstone Parties have no Knowledge that any of its Subsidiaries such real property, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. Neither Bancshares nor Cornerstone, nor any of their Subsidiaries, has experienced any restriction in access to or from public roads or any restriction in access to any utilities, including water, sewer, gas, electric, telephone, drainage, and other party thereto, except as, individually utilities used by Bancshares or Cornerstone or any of their Subsidiaries in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 operation of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are business as presently conducted; there is no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property pending or, to the knowledge Knowledge of the CompanyCornerstone Parties, Leased Real Property threatened governmental action that could prohibit or interfere with such access; and, to the Knowledge of the Cornerstone Parties, no fact or condition exists which, with the passage of time or the giving of notice, or both, may result in the termination, reduction, or impairment of such access.
(iii) Bancshares and Cornerstone and their Subsidiaries have good and marketable title to all personal property owned by the Company them, in each case free and clear of any and all Liens. Each lease pursuant to which Bancshares or Cornerstone, or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Companytheir Subsidiaries, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plantsleases, warehousesas lessee, distribution centers, structures personal property is valid and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects binding and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for and neither Bancshares nor Cornerstone, nor any of their Subsidiaries, nor any other party to any such noncompliance or failure to be lease, is in full force and effect that, individually default under or in breach or violation of any provision of any such lease. The personal property owned or leased by Bancshares and Cornerstone and their Subsidiaries is in good condition, normal wear and tear excepted, and is sufficient for the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Each carrying on of the Company business of Bancshares and its Cornerstone and their Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19ordinary course consist with past practice.
Appears in 1 contract
Properties. (a) The Company Schedule 5.08(a) correctly describes all real ---------- ---------------- property used in the Business included in the Assets (the "Real Property"), ------------- which CLARITY owns, leases or one subleases, any title insurance policies and surveys with respect thereto, and any Liens thereon, specifying in the case of its Subsidiaries leases or subleases, the name of the lessor or sublessor, the lease term and basic annual rent.
(b) Schedule 5.08(b) correctly describes all personal property used ---------------- in the Business included in the Assets, including but not limited to the Materials, equipment, furniture, vehicles, spare and replacement parts, and other trade fixtures and fixed assets, which CLARITY owns, leases or subleases, and any Liens thereon, specifying in the case of leases or subleases, the name of the lessor or sublessor, the lease term and basic annual rent.
(i) CLARITY has good and valid marketable, indefeasible, fee simple title to, or in the case of leased property and leased tangible assets, a Real Property has valid leasehold interest interests in, all of its assets constituting personal property Assets (excludingwhether real, for purposes of this sentencepersonal, assets held under leasestangible or intangible) reflected on the Balance Sheet or acquired after the Balance Sheet Date (the "Assets"), free except for the properties and clear of all Liens other than (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or assets sold since the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising Balance Sheet Date in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)practices.
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear All leases of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto personal property are in full force good standing and effectare valid, binding and enforceable in accordance with their respective terms, and there exists no default does not exist under any such lease by the Company, of real property or personal property any of its Subsidiaries Page 8 material default or any other party thereto, nor any event which, which with notice or lapse of time or both, both would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducteddefault.
(d) Each No Asset is subject to any Lien, except:
(i) Liens disclosed on the Balance Sheet;
(ii) Liens for taxes not yet due or being contested in good faith (and for which adequate accruals or reserves have been established on the Balance Sheet); or
(iii) Liens which do not materially detract from the value of such Asset as now used, or materially interfere with any present or intended use of such Asset (clauses (i), (ii) and (iii) are, collectively, the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Material Adverse Effect"Permitted --------- Liens"). Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.-----
Appears in 1 contract
Sources: Merger Agreement (Aris Corp/)
Properties. (ai) The Neither the Company or one nor any of its Subsidiaries has good and valid title toowns any real property. Except for any exceptions to the following as could not, individually or in the case aggregate, reasonably be expected to have a Material Adverse Effect on the Company: (i) each of leased property the Company and leased tangible assets, a its Subsidiaries has valid leasehold interest in, all of its assets constituting personal interests in the real property leased (excluding, for purposes of this sentence, assets held under leasesas landlord or as tenant) by or from it (the “Leased Real Property”), free and clear of all Liens other than Permitted Liens (i) statutory ad valorem and real estate and other Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested as defined in good faith by appropriate proceedings, Section 8.11(e)); (ii) mechanics’, workmen’s, repairmen’s, landlord’s, warehousemen’s, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice (iii) encumbrances on real property in the nature of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do not, individually or in the aggregate, impair present business operations at such properties, (iv) existing Liens disclosed in the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and (v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation of the assets all leases pursuant to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 4.18(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries leases (“Owned as landlord or as tenant) any Leased Real Property”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 all property leased for its Subsidiaries have not received any notice of any default either on the benefit part of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to under any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, norsuch lease and, to the knowledge of the Company, no event has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event occurred which, with notice or the lapse of time time, or both, would constitute a default thereunder by on the Company, any part of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Assuming all consents, approvals and authorizations listed in Section 4.5 of the Company Disclosure Letter relating to any Leased Real Property have been obtained, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Time.
(c) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge of the Company, Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use under any of such real propertyleases.
(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. To the knowledge The Company and each Subsidiary has good and valid title to, or a valid leasehold interest in, all tangible and intangible personal property used by it, free and clear of all encumbrances of any nature whatsoever other than (A) Permitted Liens, (B) liens arising under Securitization Transaction Documents and (C) liens arising under other financing documents of the CompanyCompany or any Subsidiary, there are no material latent defects 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 material adverse physical conditions affecting such schedules, or of any document or schedules thereto required to be added to such list in the Owned Real Property or Leased Real PropertyCompany Disclosure Schedule, in each case after the date hereof, will be provided to Parent. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained such tangible personal property is in all material respects and are in good sufficient operating condition and repair for to continue the requirements 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 currently conducted.
(d) Each conducted as of the Effective Date without the payment of any amounts by the Company or Parent and its Subsidiaries has complied with without obtaining any consent or waiver that is either required or advisable. All leases of tangible personal property of which the terms of all leases to which it Company or any Subsidiary is a party, and all such leases the lessee or obligor are in full force and effect, except for effect according to their terms and there are no outstanding defaults by the Company or any such noncompliance or failure 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 Material Adverse Effect. Each Subsidiary thereunder (nor are any of the other parties thereto in breach or default). Neither the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leasesnor any Subsidiary is obligated upon the occurrence of any condition or event to deposit or pledge any collateral to any Person pursuant to any agreement, except for any such failure to do so that, individually contract or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19commitment.
Appears in 1 contract
Sources: Merger Agreement (HPSC Inc)
Properties. (ai) (A) Colony Cove, located in Sarasota, Florida, and The Company Colony, located in Palm Springs, California, are the only real properties in which Chateau or one a Chateau Subsidiary holds a leasehold interest, and except as listed in Section 2.1(p)(i)(A) of its Subsidiaries has the Chateau Disclosure Letter, Chateau or a Chateau Subsidiary owns good and valid marketable fee simple or leasehold title to, to each of the real properties (including any and all improvements located on such properties) reflected on the most recent balance sheet of Chateau or Chateau OP included in the case Chateau SEC Documents and as identified in Section 2.1(p)(i)(A) of leased property and leased tangible assetsthe Chateau Disclosure Letter (each, a valid leasehold interest in“Chateau Property” and collectively, the “Chateau Properties”), which are all of its assets constituting personal property (excluding, for purposes of this sentence, assets held under leases)the real estate properties owned or leased by Chateau and the Chateau Subsidiaries, free and clear of all Liens other than Liens, easements, rights of way, rights of first refusal, covenants, conditions, restrictions, title defects, written agreements, Laws, ordinances and regulations affecting building use or occupancy (iincluding zoning regulations and building codes), or reservations of an interest in title (collectively, “Chateau Property Restrictions”) statutory ad valorem and real estate except for (1) debt and other matters identified on Section 2.1(p)(i)(A)(1) of the Chateau Disclosure Letter, (2) inchoate Liens imposed for current taxes and assessments construction work in progress or otherwise incurred in the ordinary course of business for amounts not yet past due delinquent or the amount or validity of which is are being contested in good faith by appropriate proceedingsproceedings and, in each case, with respect to which adequate reserves or other appropriate provisions are being maintained by Chateau or a Chateau Subsidiary, (ii3) mechanics’, workmen’s’s and repairmen’s Liens (other than inchoate Liens for work in progress) which have heretofore been bonded or insured, repairmen’s(4) Chateau Property Restrictions imposed or promulgated by Law or by any Governmental Entity which are customary and typical for similar properties and all matters disclosed on the existing title policies identified in Section 2.1(p)(i)(B) of the Chateau Disclosure Letter, landlord’sand (5) real estate Taxes and special assessments that are not yet delinquent or that are being contested in good faith by appropriate proceedings and, warehousemen’sin each case, carriers’ with respect to which adequate reserves or other appropriate provisions are being maintained by Chateau or a Chateau Subsidiary. To the Knowledge of Chateau and the Chateau Subsidiaries, none of the matters described in clauses (2) through (5) in the immediately preceding sentence (including, without limitation, matters disclosed on any existing title policies identified in Section 2.1(p)(i)(A) of the Chateau Disclosure Letter) has or would reasonably be expected to have, individually or in the aggregate, a Chateau Material Adverse Effect; (B) except as listed in Section 2.1(p)(i)(B) of the Chateau Disclosure Letter or as would not reasonably be expected to have a Chateau Material Adverse Effect, neither Chateau nor any Chateau Subsidiary has received written notice to the effect that there are any (1) condemnation or rezoning or proceedings or any utility service moratoriums or other moratoriums that are pending or, to the Knowledge of Chateau and the Chateau Subsidiaries, threatened with respect to any material portion of any of the Chateau Properties or (2) zoning, building or similar Liens arising Laws or orders that are presently being violated or will be violated by the continued maintenance, operation or use of any buildings or other improvements on any of the Chateau Properties or by the continued maintenance, operation or use of the parking areas; and (C) except as listed in Section 2.1(p)(i)(C) of the Chateau Disclosure Letter or as would not reasonably be expected to have a Chateau Material Adverse Effect, neither Chateau nor any Chateau Subsidiary has received written notice that it is currently in default or violation of any Chateau Property Restrictions.
(ii) Except as listed in Section 2.1(p)(ii) of the Chateau Disclosure Letter or, individually or in the ordinary course aggregate, as would not reasonably be expected to have a Chateau Material Adverse Effect, all properties currently under development or construction by Chateau or the Chateau Subsidiaries and all properties currently proposed for acquisition, development or commencement of business construction prior to the Effective Time by Chateau and the Chateau Subsidiaries are listed as such in Section 2.1(p)(ii) of the Company Chateau Disclosure Letter. Except as listed in Section 2.1(p)(ii) of the Chateau Disclosure Letter or such Subsidiary consistent with past practice as, individually or in the aggregate, would not reasonably be expected to have a Chateau Material Adverse Effect, all executory agreements entered into by Chateau or any of the Chateau Subsidiaries relating to the development or construction of real estate properties (other than agreements for architectural, engineering, planning, accounting, legal or other professional services or agreements for material or labor) are listed in Section 2.1(p)(ii) of the Chateau Disclosure Letter.
(iii) encumbrances on real property Section 2.1(p)(iii) of the Chateau Disclosure Letter sets forth the rent roll for each of the Chateau Properties (the “Rent Roll”) as of May 27, 2003. Except as disclosed in Section 2.1(p)(iii) of the Chateau Disclosure Letter, the information set forth in the nature Rent Roll is true, correct and complete in all material respects as of zoning restrictions, easements, rights of way, encroachments, restrictive covenants, and other similar rights or restrictions that were not incurred in connection with the borrowing of money or the obtaining of advances or credit and that do date thereof.
(iv) Except as would not, individually or in the aggregate, impair present business operations at such propertiesreasonably be expected to have a Chateau Material Adverse Effect, (iv) existing Liens disclosed in no tenants or other third parties have been granted options to purchase or rights of first refusal which would require consent to, or be triggered by, the Company’s consolidated balance sheet as at December 31, 2010 (or the notes thereto) included in the Company SEC Documents; and Merger.
(v) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, impair the continued ownership, use and operation Section 2.1(p)(v) of the assets to which they relate Chateau Disclosure Letter contains a list of any unfunded capital improvements being conducted by Chateau or any Chateau Subsidiary in the business excess of the Company and its Subsidiaries as currently conducted (“Permitted Liens”)$100,000 at any one Property.
(bvi) Except as set forth in Section 4.18(b2.1(p)(vi) of the Company Chateau Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (“Owned Real Property”) and all property leased for the benefit of the Company or any of its Subsidiaries (“Leased Real Property”). Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) good leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and as would not reasonably be expected to have a Chateau Material Adverse Effect. Assuming all consents, approvals and authorizations listed the water serving each Chateau Property is potable water furnished by the local municipality in Section 4.5 of which each such Chateau Property is located; provided, however, that if the Company Disclosure Letter relating water system is privately owned or operated, neither Chateau nor any Chateau Subsidiary has received any uncured written notice that there is a requirement that it be connected to any Leased Real Property have been obtainedthe municipal, all leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Effective Timecounty or other public system serving such Chateau Property.
(cvii) There are no contractual or legal restrictions that preclude or materially restrict the ability to use any Owned Real Property or, to the knowledge Except as set forth in Section 2.1(p)(vii) of the Company, Leased Real Property by the Company Chateau Disclosure Letter or any of its Subsidiaries for the current or contemplated use of such real property. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Owned Real Property or Leased Real Property. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained in all material respects and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
(d) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure 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 Chateau Material Adverse Effect. Each , the sanitary sewer (waste removal) system for each Chateau Property is operated by the municipality in which each such Property is located, and neither Chateau nor any Chateau Subsidiary has received an uncured written notice that the sanitary sewer (waste removal) system is not in compliance with applicable laws and regulations; provided, however, that if any such system is privately owned or operated, neither Chateau nor any Chateau Subsidiary has received any uncured notice that there is a requirement that it be connected to the municipal, county or other public system serving such Chateau Property.
(viii) A reputable title insurance company has issued policies of title insurance insuring the fee simple or leasehold, as applicable, title of Chateau and the Chateau Subsidiaries with respect to all of the Company Chateau Properties in amounts at least equal to the original cost thereof, and, to Chateau’s Knowledge, such policies are valid and its Subsidiaries enjoys peaceful in full force and undisturbed possession effect and no claim has been made under all such leases, except for any such failure to do so thatpolicy.
(ix) Except as disclosed in Section 2.1(p)(ix) of the Chateau Disclosure Letter, individually or in the aggregate, has not had and except as would not reasonably be expected to have a Chateau Material Adverse Effect. This , to the Knowledge of Chateau and the Chateau Subsidiaries, no portion of any Chateau Property lies in any flood plain or includes any wetlands or vegetation or species protected by any applicable laws.
(x) Except as would not reasonably be expected to have a Chateau Material Adverse Effect, Section 4.18 does not relate 2.1(p)(x) of the Chateau Disclosure Letter contains a complete and accurate list of all binding commitments, letters of intent or similar written agreements made or entered into by Chateau or any of the Chateau Subsidiaries as of the date hereof (x) to intellectual propertysell, which is mortgage, pledge or hypothecate all or any portion of any Chateau Property, or to otherwise enter into a material transaction in respect of the subject ownership or financing of Section 4.19all or any portion of any Chateau Property, or (y) to purchase or acquire an option, right of first refusal or similar right in respect of any real property or properties.
Appears in 1 contract