Property and Leases. (a) Each of the Company and its Subsidiaries has good and marketable title to all the real property and all other property owned by it and included in the Company Balance Sheet, free and clear of all Liens, other than (i) Liens that secure liabilities that are reflected in the Company Balance Sheet or incurred in the ordinary course of business after the date of such balance sheet, (ii) Liens for current taxes and assessments not yet past due or which are being contested in good faith, (iii) inchoate mechanics’ and materialmen’s Liens for construction in progress and other statutory Liens securing payments not past due, (iv) workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any of its Subsidiaries consistent with past practice, (v) those items that secure public or statutory obligations or any discount with, borrowing from, or obligations to any FRB or Federal Home Loan Bank, interbank credit facilities, or any transaction by the Company’s Subsidiaries acting in a fiduciary capacity, (vi) 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 business operations at such properties and (iv) such imperfections or irregularities of title or Liens as do not materially affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties. (b) Each lease or sublease of real property to which the Company or any of its Subsidiaries is a party is listed on Schedule 3.20(b) of the Company Disclosure Schedule, including all amendments and modifications thereto, and is in full force and effect. There exists no breach or default under any such lease by the Company or any of its Subsidiaries, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by the Company or any of its Subsidiaries, and, to the Knowledge of the Company, there exists no default under any such lease or sublease by any other party, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by such other party. The Company has previously made available to Buyer complete and correct copies of all such leases, including all amendments and modifications thereto. (c) Schedule 3.20(c) of the Company Disclosure Schedule sets forth a complete and accurate list of all real property owned by the Company or any of its Subsidiaries. No tenant or other party in possession of any of such property has any right to purchase, or holds any right of first refusal to purchase, such properties. (d) None of the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule and, to the Knowledge of the Company, none of the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule, or the buildings, structures, facilities, fixtures or other improvements thereon, or the use thereof, contravenes or violates any building, zoning, administrative, occupational safety and health or other applicable statute, law, ordinance, rule or regulation in any respect that would reasonably be expected to require expenditures by the Company or any of its Subsidiaries or to result in an impairment in or limitation on the activities presently conducted there. The plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule, and to the Knowledge of the Company, the plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted, are adequate and suitable for the purposes for which they are presently being used and there are no condemnation or appropriation proceedings pending or, to the Knowledge of the Company, threatened against any of such properties or any plants, buildings or other structures thereon.
Appears in 2 contracts
Samples: Merger Agreement (DCB Financial Corp), Merger Agreement (First Commonwealth Financial Corp /Pa/)
Property and Leases. (a) Each Section 4.13(a) of the Disclosure Schedule sets forth a correct and complete list of all real property interests owned or held by the Company and its Subsidiaries has good Subsidiaries, including fee interests and marketable title to ground leasehold interests and mortgage loans as a lender (all the 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 property owned by it appurtenances to such real property, are individually referred to herein as “Company Property” and included in collectively referred to herein as the “Company Properties”. As of the date hereof, each of the Company Balance SheetProperties is owned or leased by the Company, the DownREIT Partnership or another Subsidiary of the Company, as indicated in Section 4.13(a) of the Disclosure Schedule. As of the date hereof, the Company, the DownREIT Partnership or other Subsidiaries of the Company own fee simple title to, or if so indicated in Section 4.13(a) of the Disclosure Schedule, lease each of the Company Properties, in each case, free and clear of all any Liens, except for Permitted Liens and other than limitations of any kind, if any, that have not resulted, or would not reasonably be expected to result, individually or in aggregate, a Company Material Adverse Effect.
(ib) Liens that secure liabilities that are reflected Except as would not, individually or in the aggregate, reasonably be expected to constitute a Company Balance Sheet Material Adverse Effect, none of the Company Properties is subject to any rights of way, written agreements, Laws, ordinances and regulations affecting building use or incurred occupancy, or reservations of an interest in title (collectively, “Company Property Restrictions”), except for (1) Permitted Liens, (2) Company Property Restrictions imposed or promulgated by Law with respect to real property, including zoning regulations, (3) leases on the Rent Roll or leases entered into in the ordinary course of business after the date of such balance sheetthe Rent Roll, REAs, and all covenants, restrictions and other matters disclosed on the Company Title Insurance Policies or as would be disclosed on current title reports or surveys, (ii4) Liens real estate Taxes, charges or any nature for current taxes public utility services and special assessments and (5) service contracts, management agreements, leasing commission agreements and other contractual arrangements relating to the ownership, development or construction of the Company Properties. Except as would not, individually or in the aggregate, reasonably be expected to constitute a Company Material Adverse Effect, neither the Company nor any Subsidiary of the Company has received written notice that is currently in default or violation of any Company Property Restrictions. Except as would not, individually or in the aggregate, reasonably be expected to constitute a Company Material Adverse Effect, each Company Property complies with the Company Property Restrictions.
(c) Except as set forth on Section 4.13(c) of the Disclosure Schedule, as of the date hereof, there is no certificate, permit or license from any Governmental Authority having jurisdiction over any of the Company Properties and no REA or other agreement, easement or other right, in each case, that is required to be obtained by the Company or any of its Subsidiaries in order to permit the lawful use and operation of the buildings and improvements on any of the Company Properties and all utilities, parking areas, detention ponds, driveways, roads and other means of egress and ingress to and from such Company Properties (collectively, “Property Agreements”) that has not been obtained and is not in full force and effect, except for such failures to have in full force and effect that would not individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, and there is no pending written threat of modification or cancellation of any of same, that would reasonably be expected to have a Company Material Adverse Effect. Except as would not individually or in the aggregate, reasonably be expected to constitute a Company Material Adverse Effect, neither the Company nor any Subsidiary of the Company has received written notice that the Company or any Subsidiary of the Company is currently in default of any material Property Agreements.
(d) Neither the Company nor any Subsidiary of the Company has received written notice of, nor does the Company have knowledge of, any uncured violation of any Laws affecting any of the Company Properties or operations which would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Without limitation to the foregoing, except as would not, individually or in the aggregate, reasonably be expected to constitute a Company Material Adverse Effect, neither the Company nor any Subsidiary of the Company has received written notice of, nor does the Company have knowledge of, any 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 Company Properties or by the continued maintenance, operation or use of the parking areas on the Company Properties.
(e) Except as provided for in Section 4.13(e) of the Disclosure Schedule, policies of title insurance (each a “Company Title Insurance Policy”) have been issued insuring, as of the effective date of each such Company Title Insurance Policy, the Company’s, the DownREIT Partnership’s or other applicable Subsidiary’s title to or leasehold interest in the Company Properties, subject to the matters disclosed on the Company Title Insurance Policies and Permitted Liens. Except as provided for in Section 4.13(e) of the Disclosure Schedule, a copy of each Company Title Insurance Policy has been previously made available to Parent. To the Company’s Knowledge, each Company Title Insurance Policy is valid and in full force and effect and, as of the date of this Agreement, no claim has been made against any such policy.
(f) Except as provided for in Section 4.13(f) of the Disclosure Schedule, neither the Company nor any Subsidiary of the Company has received written notice of, nor does the Company have knowledge of, any condemnation or rezoning proceedings that are pending or, to the knowledge of the Company, threatened with respect to any of the Company Properties that would, individually or in the aggregate, have a Company Material Adverse Effect.
(g) Except as provided in Section 4.13(g) of the Disclosure Schedule and except for immaterial discrepancies or omissions, the rent rolls for the Company Properties (the “Rent Roll”) dated as of February 20, 2007 which have previously been made available to Parent, list each lease that was in effect as of February 20, 2007 and to which the Company or any Subsidiary of the Company is a party as landlord with respect to each of the applicable Company Properties (such leases, together with all amendments, modifications, supplements, renewals, extensions and guarantees related thereto, the “Company Leases”). Section 4.13(g) of the Disclosure Schedule sets forth a complete and correct list, as of the date of this Agreement, of all material leases which have been executed, but are either not yet past due included on the Rent Roll or which are being contested relate to property not yet open for business. Except as disclosed in good faithSection 4.13(g) of the Disclosure Schedule or for discrepancies that, (iii) inchoate mechanics’ and materialmen’s Liens for construction in progress and other statutory Liens securing payments not past due, (iv) workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising either individually or in the ordinary course aggregate, would not have a Company Material Adverse Effect, the information set forth in the Rent Roll is true, correct and complete as of business February 20, 2007. Except as set forth in Section 4.13(g) of the Disclosure Schedule, all Company Leases that relate to in excess of 20,000 square feet of net rentable area (the “Material Company Leases”) are in full force and effect and neither the Company nor any Subsidiary of the Company has received written notice that the tenant thereunder intends to vacate or not renew the term of, or the applicable Subsidiary of the Company is in default under, any Material Company Lease, except for violations or defaults that have been cured or that have not resulted, or would not reasonably be expected to result, individually or in the aggregate, in a Company Material Adverse Effect. As of the date of this Agreement, except as provided in Section 4.13(g) of the Disclosure Schedule, no tenant under a Material Company Lease is in monetary or, to the knowledge of the Company, material non-monetary default under such Material Company Lease.
(h) Except as set forth in Section 4.13(h) of the Disclosure Schedule, to the knowledge of the Company, all operation and reciprocal easement agreements or other similar agreements under which the Company or any Subsidiary of the Company is a party (each, an “REA”) are in full force and effect and neither the Company nor any Subsidiary of the Company has received written notice that the applicable Subsidiary of the Company is in default under any REA, except for violations or defaults that have been cured or that have not resulted, or would not reasonably be expected to result, individually or in the aggregate, a Company Material Adverse Effect. Except as provided in Section 4.13(h) of the Disclosure Schedule, neither the Company nor any Subsidiary of the Company has delivered a written notice to a party under an REA that it is in default under such REA and no such party to an REA is in monetary or, to the knowledge of the Company, material non-monetary default under such REA, except for defaults that have not resulted, or would not reasonably be expected to result, individually or in the aggregate, a Company Material Adverse Effect.
(i) Section 4.13(i) of the Disclosure Schedule sets forth a correct and complete list as of the date of this Agreement of each ground lease pursuant to which the Company or any Subsidiary is a lessee (each, a “Ground Lease”). Each Ground Lease is in full force and effect. Neither the Company nor any of its Subsidiaries is in default or violation (and no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation) of any term, condition or provision of any Ground Lease, except for defaults or violations which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. The Company has made available to Parent copies of each Ground Lease and all amendments thereto, which copies are true, correct and complete in all material respects.
(j) Except as set forth in Section 4.13(j) of the Disclosure Schedule, as of the date hereof, there are no unexpired option agreements or rights of first refusal with respect to the purchase of a Company Property or any portion thereof that is owned by the Company or any Subsidiary or any other unexpired rights in favor of any party other than the Company or any Subsidiary (a “Third Party”) to purchase or otherwise acquire a Company Property or any portion that is owned by the Company or any Subsidiary or any portion thereof (except any such option agreements, rights of first refusal or unexpired rights that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect); nor has the Company or any Subsidiary of the Company entered into any contract for sale, ground lease or letter of intent to sell or ground lease any Company Property or any portion thereof that is owned by the Company or any Subsidiary.
(k) The Company has provided or made available to Parent copies of all agreements pursuant to which the Company or any Subsidiary manages, acts as leasing agent for or provides development services for any real property for any Third Party and any other contracts which otherwise produce fee income to the Company or any of its Subsidiaries, which copies are true, correct and complete in all material respects.
(l) Except for those contracts or agreements set forth in Section 4.13(l) of the Disclosure Schedule or as contemplated by, or provided in, the Company Leases, none of the Company or any of its Subsidiaries consistent has entered into any contract or agreement (collectively, the “Participation Agreements”) with past practice, (v) those items that secure public or statutory obligations any Third Party or any discount withemployee, borrowing fromconsultant, Affiliate or other person (the “Participation Party”) that provides for a right of such Participation Party to participate, invest, join, partner, or obligations have any interest in whatsoever (whether characterized as a contingent fee, profits interest, equity interest or otherwise) or have the right to any FRB of the foregoing in any proposed or Federal Home Loan Bankanticipated investment opportunity, interbank credit facilitiesjoint venture, partnership or any other current or future transaction by the Company’s Subsidiaries acting or property in a fiduciary capacity, (vi) 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 business operations at such properties and (iv) such imperfections or irregularities of title or Liens as do not materially affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties.
(b) Each lease or sublease of real property to which the Company or any Subsidiary has or will have an interest, including but not limited to those transactions or properties identified, sourced, produced or developed by such Participation Party. Neither the Company nor any of its Subsidiaries is in default or violation (and no event has occurred which, with notice or the lapse of time or both, would constitute a party is listed on Schedule 3.20(bdefault or violation) of any term, condition or provision of any Participation Agreement, except for defaults or violations which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
(m) Except as would not, individually or in the aggregate, constitute a Company Material Adverse Effect, all properties currently under development or construction by the Company or any Subsidiary of the Company Disclosure Scheduleand all properties currently proposed for acquisition, including all amendments and modifications thereto, and is in full force and effect. There exists no breach development or default under any such lease commencement of construction prior to the Effective Time by the Company or any of its Subsidiaries, nor any event which with notice or lapse Subsidiary of time or both would constitute a breach or default thereunder by the Company or any are reflected in the Company’s capital budget, attached hereto as Section 4.13(m) of its Subsidiariesthe Disclosure Schedule (“2007 Budget”), and, delivered to Parent prior to the Knowledge of the Company, there exists no default under any such lease or sublease by any other party, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by such other party. The Company has previously made available to Buyer complete and correct copies of all such leases, including all amendments and modifications theretodate hereof.
(cn) Schedule 3.20(c) Except as would not otherwise constitute a Company Material Adverse Effect, the Company and each Subsidiary of the Company Disclosure Schedule sets forth a complete has good and accurate list sufficient title to, or is permitted to use under valid and existing licenses or leases, all their personal properties and assets reflected in their books and records as being owned by them or used by them in the ordinary course of business, free and clear of all real property owned by liens and encumbrances, except for liens for current taxes not yet due and payable, and liens or encumbrances which are normal to the business of the Company and its Subsidiaries and are not, in the aggregate, material in relation to the assets of the Company on a consolidated basis and except also for such imperfections of title or any of its Subsidiaries. No tenant or other party in possession of any of such property has any right to purchaseleasehold interest, or holds any right of first refusal to purchaseeasement and encumbrances, such properties.
(d) None if any, as do not materially interfere with the present use of the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule and, to the Knowledge of the Company, none of the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule, subject thereto or the buildings, structures, facilities, fixtures or other improvements thereon, or the use thereof, contravenes or violates any building, zoning, administrative, occupational safety and health or other applicable statute, law, ordinance, rule or regulation in any respect that would reasonably be expected to require expenditures by the Company or any of its Subsidiaries or to result in an impairment in or limitation on the activities presently conducted there. The plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule, and to the Knowledge of the Company, the plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted, are adequate and suitable for the purposes for which they are presently being used and there are no condemnation or appropriation proceedings pending or, to the Knowledge of the Company, threatened against any of such properties or any plants, buildings or other structures thereonaffected thereby.
Appears in 2 contracts
Samples: Merger Agreement (New Plan Excel Realty Trust Inc), Merger Agreement (Centro Properties LTD)
Property and Leases. (a) Each The Company or one of the Company Subsidiaries owns, and its Subsidiaries has good and marketable title to all to, each of the real property and all other property tangible assets reflected as owned by it and included the Company or the Company Subsidiaries on the July 2010 Balance Sheet (except for tangible assets sold or disposed of since that date in the Company ordinary course of business and sales after the date of the July 2010 Balance SheetSheet of assets no longer required for the conduct of the Company’s business as presently conducted) in all material respects, free and clear of all Liens, any Liens other than (i) Liens that secure liabilities that for current Taxes, payments of which are reflected not yet delinquent or are being contested in good faith and for which adequate reserves in accordance with GAAP have been established on the Company Balance Sheet or incurred Financial Reports as adjusted in the ordinary course of business after through the date of such balance sheet, Effective Time; (ii) Liens for current taxes of landlords and assessments not yet past due or which are being contested in good faithliens of carriers, (iii) inchoate mechanics’ warehousemen, mechanics and materialmen’s Liens for construction in progress materialmen and other statutory Liens securing payments not past due, (iv) workmen’s, repairmen’s, warehousemen’s and carriers’ like Liens arising in the ordinary course of business for sums not yet due and payable, (iii) security given in the ordinary course of business as of the Closing Date to any public utility, Governmental Authority or other statutory or public authority in connection with the assets of the Company or any Company Subsidiary; (iv) items which an inspection or survey of its any tangible assets of the Company or the Company Subsidiaries consistent would disclose and which do not materially detract from the value of such assets or materially interfere with past practice, the use or operation of such assets; (v) those items that secure public or statutory obligations or any discount withLiens imposed on the underlying fee interest in leased property which, borrowing from, or obligations to any FRB or Federal Home Loan Bank, interbank credit facilities, or any transaction by the Company’s Subsidiaries acting in a fiduciary capacityknowledge, do not materially adversely affect the use of such leased property for its intended use, (vi) easements, rights of way, and other similar encumbrances Liens that do not materially affect interfere with the value use or use operation of the properties or assets property subject thereto or affected thereby or otherwise materially impair business operations at such and (vii) those matters of record set forth on Section 4.13(a) of the Disclosure Letter; provided, that no representation is made under this Section 4.13 with respect to Intellectual Property Rights. The Company and the Company Subsidiaries have sufficient title to all their properties and (iv) assets to conduct their respective businesses as currently conducted, with only such imperfections exceptions as, individually or irregularities of title or Liens as do in the aggregate, would not materially affect the value or use reasonably be expected to have a Material Adverse Effect. All of the properties machinery, equipment and other tangible personal property and assets owned or used by the Company and the Company Subsidiaries, including such assets subject thereto located on the Company Leased Real Property, are in the condition and repair sufficient to conduct their respective businesses as currently conducted, with only such exceptions as, individually or affected thereby or otherwise materially impair business operations at such propertiesin the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(b) Each lease or sublease of real property to which Neither the Company or any of its Subsidiaries is a party is listed on Schedule 3.20(b) of the Company Disclosure Schedule, including all amendments and modifications thereto, and is in full force and effect. There exists no breach or default under any such lease by the Company or any of its Subsidiaries, nor any event which with notice Company Subsidiaries own or lapse of time or both would constitute a breach or default thereunder by the Company or previously owned any of its Subsidiaries, and, to the Knowledge of the Company, there exists no default under any such lease or sublease by any other party, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by such other party. The Company has previously made available to Buyer complete and correct copies of all such leases, including all amendments and modifications theretoreal property.
(c) Schedule 3.20(cSection 4.13(c) of the Company Disclosure Schedule Letter sets forth the address of each parcel of leased real property and a complete and accurate list of all leases of such real property owned by (“Company Leased Real Property”) to which the Company or any Company Subsidiary is a party. Neither the Company nor any Company Subsidiary has received written notice of its Subsidiaries. No tenant any condemnation, expropriation or other party proceeding in possession of any of such property has any right to purchase, or holds any right of first refusal to purchase, such properties.
(d) None of the properties required to be listed on Schedule 3.20(c) of eminent domain affecting the Company Disclosure Schedule andLeased Real Property or any portion thereof or interest therein, and to the Knowledge knowledge of the Company, none of no such proceedings are threatened or proposed. Neither the properties required Company nor any Company Subsidiary has subleased, licensed or otherwise granted to be listed on Schedule 3.20(b) any other person any rights to use, occupy or possess any part of the Company Disclosure Schedule, or the buildings, structures, facilities, fixtures or other improvements thereon, or the use thereof, contravenes or violates any building, zoning, administrative, occupational safety and health or other applicable statute, law, ordinance, rule or regulation in any respect that would reasonably be expected to require expenditures by Leased Real Property. Neither the Company nor any Company Subsidiary has collaterally assigned or granted any of its Subsidiaries or to result other security interest in an impairment in or limitation on the activities presently conducted there. The plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule, and to the Knowledge of the Company, the plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted, are adequate and suitable for the purposes for which they are presently being used and there are no condemnation or appropriation proceedings pending or, to the Knowledge of the Company, threatened against any of such properties or any plants, buildings or other structures thereonLeased Real Property.
Appears in 2 contracts
Samples: Merger Agreement (Actel Corp), Merger Agreement (Microsemi Corp)
Property and Leases. (a) Each of the Company and its Subsidiaries has good and marketable title to all the real property and all other property owned by it and included in the Company Balance Sheet, free and clear of all Liens, other than (i) Liens that secure liabilities that are reflected in the Company Balance Sheet or incurred in the ordinary course of business after the date of such balance sheetSheet, (ii) Liens for current taxes and assessments not yet past due or which are being contested in good faithfaith and reserves established therefor, (iii) inchoate mechanics’ and materialmen’s Liens for construction in progress and other statutory Liens securing payments not past dueprogress, (iv) workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any of its Subsidiaries consistent with past practice, none of which have a material impact on the use or value of the applicable real or other property, and (v) those items that secure public or statutory obligations or any discount with, borrowing from, or obligations to any FRB or Federal Home Loan Bank, interbank credit facilities, or any transaction by the Company’s Subsidiaries acting in a fiduciary capacity, (vi) . Neither the Company nor any of its Subsidiaries has received written notice of any violation of any recorded easements, rights covenants or restrictions affecting all the real property and all other property interests owned or leased by it and included in the Company Balance Sheet that would reasonably be expected to require expenditures by the Company or any of wayits Subsidiaries or to result in an impairment in or limitation on the activities presently conducted thereon, and other similar encumbrances that do not materially affect and, to the value or use Knowledge of the properties Company, no other party is in violation of any such easements, covenants or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties and (iv) such imperfections or irregularities of title or Liens as do not materially affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such propertiesrestrictions.
(b) Each lease or sublease of real property to which the Company or any of its Subsidiaries is a party is listed on Schedule 3.20(b3.21(b) of the Company Disclosure Schedule, including all amendments and modifications thereto, and is in full force and effecteffect (the “Leases”). There exists no breach or default under any such lease Leases by the Company or any of its Subsidiaries, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by the Company or any of its Subsidiaries, and, to the Knowledge of the Company, there exists no breach or default under any such lease Leases or sublease by any other party, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by such other party. The Company has previously made available to Buyer complete and correct copies of all such leasesLeases, including all amendments and modifications thereto. The Leases are in full force and effect, enforceable in accordance with their terms and constitute binding obligations of a Company or Subsidiary, as applicable, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). Schedule 3.21(b) of the Company Disclosure Schedule includes a list of all security deposits held under the Leases and no such security deposit under the Leases has been applied in respect of a breach or default under such Leases; neither the Company nor any Subsidiary of the Company owes, nor will it owe in the future, any brokerage commissions or finder’s fees with respect to such Leases; there are no outstanding tenant improvements, free rent, or other landlord inducement costs in favor of the Company; all rents, legal deposits and additional guarantees and any other amounts or charges to the extent due and payable under the Leases have been paid; no Company or Subsidiary has received any written notice of any intention to terminate, any Lease; there are no leases, subleases, licenses, concessions or any other contracts or agreements granting to any person other than the Company or a Subsidiary any right to the possession, use, occupancy or enjoyment of any leased real property that is the subject of a Lease; and neither the Company nor any Subsidiary has collaterally assigned or granted any security interest in such Lease or any interest therein.
(c) Schedule 3.20(c3.21(c) of the Company Disclosure Schedule sets forth a complete and accurate list of all real property owned by the Company or any of its SubsidiariesSubsidiaries (the “Owned Real Property”). Schedule 3.21(c) of the Company Disclosure Schedule contains a true, correct and accurate rent roll listing all tenants who lease space in the Owned Real Property, the rent paid, term, security deposit and all other material terms. True, correct and complete copies of all leases to tenants who lease space in the Owned Real Property have been made available to Buyer. No tenant or other party in possession of any of such property has any right to purchase, or holds any right of first refusal to purchase, right of first offer or any similar rights with respect to such properties. The Company has made available to Buyer the most current copies of policies of title insurance for the Owned Real Property, and no claim has been made against any such policy which remains pending. The Company has made available to Buyer copies of the most recent surveys and copies of deeds evidencing fee simple title for the Owned Real Property together with copies of all documents listed as exceptions on such title policy. Except as disclosed on Schedule 3.21(c) of the Company Disclosure Schedule, there are no management agreements pursuant to which any third party manages or operates any Owned Real Property or any portion thereof (the “Management Agreement Documents”). Correct and complete copies of any Management Agreement Documents have been provided to Buyer. Each of any such Management Agreement Documents is valid and binding on the Company or its Subsidiary, and, to the Knowledge of the Company, each other party thereto, subject, in each case, to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and is in full force and effect. Neither the Company nor any of its Subsidiaries has received written notice that it is in default of any obligations under any Management Agreement Document, and, to the Knowledge of the Company, the manager under such Management Agreement Document has not received written notice that it is in default of its obligations under such Management Agreement Document. Except as listed in Schedule 3.21(c) of the Company Disclosure Schedule, none of the Owned Real Property is subject to special flood or mudslide hazards or within the 100 year flood plain.
(d) None of the properties required to be listed on Schedule 3.20(c3.21(c) of the Company Disclosure Schedule and, to the Knowledge of the Company, none of the properties required to be listed on Schedule 3.20(b3.21(b) of the Company Disclosure Schedule, or the buildings, structures, facilities, fixtures or other improvements thereon, or the use thereof, contravenes or violates any building, zoning, administrative, occupational safety and health or other applicable statute, law, ordinance, rule or regulation in any respect that would reasonably be expected to require expenditures by the Company or any of its Subsidiaries or to result in an impairment in or limitation on the activities presently conducted there. The plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(c3.21(c) of the Company Disclosure Schedule, and to the Knowledge of the Company, the plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(b3.21(b) of the Company Disclosure Schedule are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted, are adequate and suitable for the purposes for which they are presently being used and and, to the Knowledge of the Company, there are no condemnation or appropriation proceedings pending or, to the Knowledge of the Company, or threatened against any of such properties or any plants, buildings or other structures thereon. Except as listed on Schedule 3.21(d) of the Company Disclosure Schedule, (A) there are no pending or, to the knowledge of the Company, written threatened condemnation proceedings, suits or administrative actions relating to such real property or other matters materially affecting adversely the current use, occupancy or value thereof; (B) there is no renovation or construction project currently being performed or contemplated at such Owned Real Property; (C) such real property is occupied under a valid and current certificate of occupancy or similar permit, the transactions contemplated by this Agreement will not require the issuance of any new or amended certificate of occupancy and, to the Knowledge of the Company, there are no facts that would prevent such real property from being occupied by the Buyer, after the Closing Date in the same manner as occupied by the Company and/or its Subsidiaries immediately prior to the Closing; (D) the Company has not entered into any other contract for the sale of such real property or any constituent or portion thereof, and no lease or other agreement affecting such real property contains any rights of first refusal, right of first offer or options to purchase such real property or any portion thereof or any other similar rights; and (E) there are no disputes, claims, litigations, investigations, and proceedings affecting such real property which could affect the real property.
Appears in 2 contracts
Samples: Merger Agreement (PCSB Financial Corp), Merger Agreement (Brookline Bancorp Inc)
Property and Leases. (a) Each of the Company and its Subsidiaries has good and marketable title to all the real property and all other property owned by it and included in the Company Balance Sheet, free and clear of all Liens, other than (i) Liens that secure liabilities that are reflected in the Company Balance Sheet or incurred in the ordinary course of business after the date of such balance sheet, (ii) Liens for current taxes and assessments not yet past due or which are being contested in good faith, (iii) inchoate mechanics’ and materialmen’s Liens for construction in progress and other statutory Liens securing payments not past dueprogress, (iv) workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any of its Subsidiaries consistent with past practice, and (v) those items that secure public or statutory obligations or any discount with, borrowing from, or obligations to any FRB or Federal Home Loan Bank, interbank credit facilities, or any transaction by the Company’s Subsidiaries acting in a fiduciary capacity, (vi) 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 business operations at such properties and (iv) such imperfections or irregularities of title or Liens as do not materially affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties.
(b) Each lease or sublease of real property to which the Company or any of its Subsidiaries is a party is listed on Schedule 3.20(b) of the Company Disclosure Schedule, including all amendments and modifications thereto, and is in full force and effect. There exists no breach or default under any such lease by the Company or any of its Subsidiaries, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by the Company or any of its Subsidiaries, and, to the Knowledge of the Company, there exists no default under any such lease or sublease by any other party, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by such other party. The Company has previously made available to Buyer complete and correct copies of all such leases, including all amendments and modifications thereto.
(c) Schedule 3.20(c) of the Company Disclosure Schedule sets forth a complete and accurate list of all real property owned by the Company or any of its Subsidiaries. No tenant or other party in possession of any of such property has any right to purchase, or holds any right of first refusal to purchase, such properties.
(d) None of the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule and, to the Knowledge of the Company, none of the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule, or the buildings, structures, facilities, fixtures or other improvements thereon, or the use thereof, contravenes or violates any building, zoning, administrative, occupational safety and health or other applicable statute, law, ordinance, rule or regulation in any respect that would reasonably be expected to require expenditures by the Company or any of its Subsidiaries or to result in an impairment in or limitation on the activities presently conducted there. The plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule, and to the Knowledge of the Company, the plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted, are adequate and suitable for the purposes for which they are presently being used and and, to the Knowledge of the Company, there are no condemnation or appropriation proceedings pending or, to the Knowledge of the Company, or threatened against any of such properties or any plants, buildings or other structures thereon.
Appears in 2 contracts
Samples: Merger Agreement (NBT Bancorp Inc), Merger Agreement (Alliance Financial Corp /Ny/)
Property and Leases. (a) Each of the Company and its Subsidiaries has good and marketable title to all the real property and all other property owned by it and included in the Company Balance Sheet, free and clear of all Liens, other than (i) Liens that secure liabilities that are reflected in the Company Balance Sheet or incurred in the ordinary course of business after the date of such balance sheet, (ii) Liens for current taxes and assessments not yet past due or which are being contested in good faith, (iii) inchoate mechanics’ ' and materialmen’s 's Liens for construction in progress and other statutory Liens securing payments not past dueprogress, (iv) workmen’s's, repairmen’s's, warehousemen’s 's and carriers’ ' Liens arising in the ordinary course of business of the Company or any of its Subsidiaries consistent with past practice, and (v) those items that secure public or statutory obligations or any discount with, borrowing from, or obligations to any FRB or Federal Home Loan Bank, interbank credit facilities, or any transaction by the Company’s 's Subsidiaries acting in a fiduciary capacity, (vi) 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 business operations at such properties and (iv) such imperfections or irregularities of title or Liens as do not materially affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties.
(b) Each lease or sublease of real property to which the Company or any of its Subsidiaries is a party is listed on Schedule 3.20(b) of the Company Disclosure Schedule, including all amendments and modifications thereto, and is in full force and effect. There exists no breach or default under any such lease by the Company or any of its Subsidiaries, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by the Company or any of its Subsidiaries, and, to the Knowledge of the Company, there exists no default under any such lease or sublease by any other party, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by such other party. The Company has previously made available to Buyer complete and correct copies of all such leases, including all amendments and modifications thereto.
(c) Schedule 3.20(c) of the Company Disclosure Schedule sets forth a complete and accurate list of all real property owned by the Company or any of its Subsidiaries. No tenant or other party in possession of any of such property has any right to purchase, or holds any right of first refusal to purchase, such properties.
(d) None Except as set forth on Schedule 3.20(d) of the Company Disclosure Schedule, none of the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule and, to the Knowledge of the Company, none of the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule, or the buildings, structures, facilities, fixtures or other improvements thereon, or the use thereof, contravenes or violates any building, zoning, administrative, occupational safety and health or other applicable statute, law, ordinance, rule or regulation in any respect that would reasonably be expected to require expenditures by the Company or any of its Subsidiaries or to result in an impairment in or limitation on the activities presently conducted there. The Except as set forth on Schedule 3.20(d) of the Company Disclosure Schedule, the plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule, and to the Knowledge of the Company, the plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted, are adequate and suitable for the purposes for which they are presently being used and and, to the Knowledge of the Company, there are no condemnation or appropriation proceedings pending or, to the Knowledge of the Company, or threatened against any of such properties or any plants, buildings or other structures thereon.
Appears in 2 contracts
Samples: Merger Agreement (Bancorp Rhode Island Inc), Merger Agreement (Brookline Bancorp Inc)
Property and Leases. (a) Each Except as disclosed on Schedule 3.17(a) of the Company Disclosure Schedule, each of the Company and its Subsidiaries has good good, record and marketable title to all the real property and all other property interests owned or leased by it and included in the Company Balance Sheet, free and clear of all Liens, other than (i) Liens that secure liabilities that are reflected in the Company Balance Sheet or incurred in the ordinary course of business after the date of such balance sheet, (ii) Liens for current taxes and assessments not yet past due or which are being contested in good faith, (iii) inchoate mechanics’ and materialmen’s Liens for construction in progress and other statutory Liens securing payments not past due, (iv) workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any of its Subsidiaries consistent with past practice, and (viii) those items that secure public or statutory obligations or any discount with, borrowing from, or obligations to any FRB or Federal Home Loan Bank, interbank credit facilities, or any transaction by the Company’s Subsidiaries acting in a fiduciary capacity, (vi) . Neither the Company nor any of its Subsidiaries has received written notice of any violation of any recorded easements, rights covenants or restrictions affecting all the real property and all other property interests owned or leased by it and included in the Company Balance Sheet that would reasonably be expected to require expenditures by the Company or any of wayits Subsidiaries or to result in an impairment in or limitation on the activities presently conducted there, and other similar encumbrances that do not materially affect and, to the value or use Knowledge of the properties Company, no other party is in violation of any such easements, covenants or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties and (iv) such imperfections or irregularities of title or Liens as do not materially affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such propertiesrestrictions.
(b) Each lease or sublease of real property to which the Company or any of its Subsidiaries is a party is listed on Schedule 3.20(b3.21(b) of the Company Disclosure Schedule, including all amendments and modifications thereto, and is in full force and effect. There exists no breach or default under any such lease or sublease by the Company or any of its Subsidiaries, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by the Company or any of its Subsidiaries, and, to the Knowledge of the Company, there exists no default under any such lease or sublease by any other party, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by such other party. The Company has not received any notice from any other party to such a lease or sublease that such party intends to terminate, or not renew, such lease or sublease, or is seeking the renegotiation thereof. The Company has previously made available to Buyer complete and correct copies of all such leasesleases and subleases, including all amendments and modifications thereto.
(c) Schedule 3.20(c3.21(c) of the Company Disclosure Schedule sets forth a complete and accurate list of all real property owned by the Company or any of its Subsidiaries. No tenant or other party in possession of any of such property has any right to purchase, or holds any right of first refusal to purchase, such properties.
(d) None Except as set forth on Schedule 3.21(d) of the Company Disclosure Schedule, none of the properties required to be listed on Schedule 3.20(c3.21(c) of the Company Disclosure Schedule and, to the Knowledge of the Company, none of the properties required to be listed on Schedule 3.20(b3.21(b) of the Company Disclosure Schedule, or the buildings, structures, facilities, fixtures or other improvements thereon, or the use thereof, contravenes or violates any building, zoning, administrative, occupational safety and health or other applicable statute, law, ordinance, rule or regulation in any respect that would reasonably be expected to require expenditures by the Company or any of its Subsidiaries or to result in an impairment in or limitation on the activities presently conducted therethereon. The Except as set forth on Schedule 3.21(d) of the Company Disclosure Schedule, the plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(c3.21(c) of the Company Disclosure Schedule, and to the Knowledge of the Company, the plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(b3.21(b) of the Company Disclosure Schedule are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted, are adequate and suitable for the purposes for which they are presently being used and and, to the Knowledge of the Company, there are no condemnation or appropriation proceedings pending or, to the Knowledge of the Company, or threatened against any of such properties or any plants, buildings or other structures thereon.
Appears in 1 contract
Property and Leases. (a) Each Section 3.13(a) of the Company Disclosure Schedule lists all of the real property owned or currently leased by the Company (the “Owned Property” and its Subsidiaries the “Leased Property,” respectively). All such real property is in all material respects adequate for the uses for which it is currently devoted. Company has good and marketable insurable title in fee simple absolute to all the real property and all other property Owned Property indicated on Section 3.13(a) of the Company Disclosure Schedule to be owned by it it, and included in to the Company Balance Sheetbuildings, structures and improvements therein, free and clear of any and all Liens, other than except Permitted Liens.
(ib) Liens that secure liabilities that are reflected in All leases of the Company Balance Sheet Leased Property leased for the use or incurred in the ordinary course of business after the date of such balance sheet, (ii) Liens for current taxes and assessments not yet past due or which are being contested in good faith, (iii) inchoate mechanics’ and materialmen’s Liens for construction in progress and other statutory Liens securing payments not past due, (iv) workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business benefit of the Company or any of its Subsidiaries consistent with past practice, (v) those items that secure public or statutory obligations or any discount with, borrowing from, or obligations to any FRB or Federal Home Loan Bank, interbank credit facilities, or any transaction by the Company’s Subsidiaries acting in a fiduciary capacity, (vi) 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 business operations at such properties and (iv) such imperfections or irregularities of title or Liens as do not materially affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties.
(b) Each lease or sublease of real property to which the Company or any of its Subsidiaries is a party is listed on Schedule 3.20(b) of the Company Disclosure Scheduleparty, including and all amendments and modifications thereto, and is are in full force and effect. There effect and have not been modified or amended, and there exists no breach or default under any such lease by the Company or any of its Subsidiaries, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company or any of its Subsidiaries, except as would not prevent or materially delay consummation of the Merger and would not have a Material Adverse Effect.
(c) The current use of the facilities located on the Owned Property and the Leased Property does not violate any applicable local zoning or similar land use or government regulations of any Governmental Authority in any material respect.
(d) The Owned Property is not subject to any outstanding purchase options nor has the Company or any of its Subsidiaries entered into any outstanding contracts, agreements, commitments, letters of intent or similar written understandings as of the date hereof with others for the sale, mortgage, pledge, hypothecation, assignment, sublease, lease or other transfer of all or any part of the Owned Property, and no person has any right or option to acquire, or right of first refusal with respect to, the Company’s interest in the Owned Property or any part thereof.
(e) Neither the Owned Property nor the Leased Property violates any material provisions of any applicable building code, fire, health or safety regulations, or other governmental ordinances, orders or regulations, of any Governmental Authority, and the Company and its Subsidiaries are in material compliance with all applicable Laws relating to the Owned Property or the Leased Property or any part thereof.
(f) The Company has delivered to Purchaser true, correct and complete copies of all leases relating to the Leased Property and all amendments and modifications thereof (“Leases”). All such Leases are valid, binding and in full force and effect and are enforceable by the Company or its Subsidiaries in accordance with their terms, except (i) that such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally; and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The Company and its Subsidiaries have performed all material obligations required to be performed by them to date under each such Lease, and there has been no material breach or default under any such leases by the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other party thereto, nor any such breach or default by the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other party thereto which with notice or lapse of time or both would constitute a breach or an event of default thereunder by the Company or any of its Subsidiaries, and, to the Knowledge of the Company, there exists no default under any such lease or sublease by any other party, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by such other party. The Company has previously made available to Buyer complete and correct copies of all such leases, including all amendments and modifications theretothereunder.
(c) Schedule 3.20(c) of the Company Disclosure Schedule sets forth a complete and accurate list of all real property owned by the Company or any of its Subsidiaries. No tenant or other party in possession of any of such property has any right to purchase, or holds any right of first refusal to purchase, such properties.
(d) None of the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule and, to the Knowledge of the Company, none of the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule, or the buildings, structures, facilities, fixtures or other improvements thereon, or the use thereof, contravenes or violates any building, zoning, administrative, occupational safety and health or other applicable statute, law, ordinance, rule or regulation in any respect that would reasonably be expected to require expenditures by the Company or any of its Subsidiaries or to result in an impairment in or limitation on the activities presently conducted there. The plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule, and to the Knowledge of the Company, the plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted, are adequate and suitable for the purposes for which they are presently being used and there are no condemnation or appropriation proceedings pending or, to the Knowledge of the Company, threatened against any of such properties or any plants, buildings or other structures thereon.
Appears in 1 contract
Property and Leases. (a) Each of the Company and its Subsidiaries has good good, record and marketable title to all the real property and all other property interests owned or leased by it and included in the Company Balance Sheet, free and clear of all Liens, other than (i) monetary Liens that secure liabilities that are reflected in the Company Balance Sheet or disclosed in the notes to the Company Financial Statements, (ii) Liens incurred in the ordinary course of business after the date of such balance sheet, (ii) Liens for current taxes and assessments not yet past due or which are being contested Company Balance Sheet in good faithamounts less than $50,000, (iii) inchoate mechanics’ and materialmen’s Liens for construction in progress and other statutory Liens securing payments not past due, (iv) workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or any of its Subsidiaries consistent with past practicepractice (x) for amounts not yet due and payable or (y) for amounts that are due and payable that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP, (iv) matters reflected in that certain Commonwealth Land Title Company title commitment, effective August 18, 2015, provided to the Company by Buyer and (v) those items that secure public or statutory obligations or any discount with, borrowing from, or obligations to any FRB or Federal Home Loan Bank, interbank credit facilities, or any transaction by the Company’s Subsidiaries acting in a fiduciary capacity. Neither the Company nor any of its Subsidiaries has received written notice of any violation of or non-payment under any easements, covenants or restrictions affecting all the real property and all other material property owned or leased by it that would reasonably be expected to require expenditures by the Company or any of its Subsidiaries or to result in an impairment in or limitation on the activities presently conducted there, and, to the Knowledge of the Company, (vix) no such violation or non-payment exists under any such easements, rights of waycovenants or restrictions, and (y) no other similar encumbrances that do not materially affect the value party is in violation of any such easements, covenants or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties and (iv) such imperfections or irregularities of title or Liens as do not materially affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such propertiesrestrictions.
(b) Each lease or sublease Lease of real property to which the Company or any of its Subsidiaries is a party is listed on Schedule 3.20(b3.21(b) of the Company Disclosure Schedule, including all amendments and modifications thereto, Schedule and is in full force and effect. There exists no breach or default under any such lease by the Company or any of its Subsidiaries, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by the Company or any of its Subsidiaries, and, to the Knowledge of the Company, there exists no default under any such lease or sublease Lease by any other party, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by such other party. The Company has previously made available to Buyer complete and correct copies of all such leases, including all amendments and modifications thereto.
(c) Schedule 3.20(c) of the Company Disclosure Schedule sets forth a complete and accurate list of all real property owned by the Company or any of its Subsidiaries. No tenant or other party in possession of any of such property has any right to purchase, or holds any right of first refusal to purchase, such properties.
(d) None of the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule and, to the Knowledge of the Company, none of the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule, or the buildings, structures, facilities, fixtures or other improvements thereon, or the use thereof, contravenes or violates any building, zoning, administrative, occupational safety and health or other applicable statute, law, ordinance, rule or regulation in any respect that would reasonably be expected to require expenditures by the Company or any of its Subsidiaries or to result in an impairment in or limitation on the activities presently conducted thereLeases. The plantsrental payment set forth in each Lease is the actual rent being paid, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule, and to the Knowledge of the Company, the plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted, are adequate and suitable for the purposes for which they are presently being used and there are no condemnation separate agreements or appropriation proceedings pending or, understandings with respect to the Knowledge of the Companysame. “Lease” means any lease, threatened against any of such properties or any plantssublease, buildings master lease, license, sublicense, occupancy agreement, or other structures thereonagreement (written or oral) pertaining to any real property, including all exhibits, amendments, modifications, extensions, renewals, guaranties, estoppel certificates, commencement date letter, memorandum of lease, consents, subordination, non-disturbance and attornment agreements and other agreements relating thereto.
Appears in 1 contract
Property and Leases. (a) Each Section 3.13(a) of the Company Disclosure Schedule lists all of the real property owned or currently leased by the Company (the “Owned Property” and its Subsidiaries the “Leased Property,” respectively). All such real property is in all material respects adequate for the uses for which it is currently devoted. Company has good and marketable insurable title in fee simple absolute to all the real property and all other property Owned Property indicated on Section 3.13(a) of the Company Disclosure Schedule to be owned by it it, and included in to the Company Balance Sheetbuildings, structures and improvements therein, free and clear of any and all Liens, other than except Permitted Liens.
(ib) Liens that secure liabilities that are reflected in All leases of the Company Balance Sheet Leased Property leased for the use or incurred in the ordinary course of business after the date of such balance sheet, (ii) Liens for current taxes and assessments not yet past due or which are being contested in good faith, (iii) inchoate mechanics’ and materialmen’s Liens for construction in progress and other statutory Liens securing payments not past due, (iv) workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business benefit of the Company or any of its Subsidiaries consistent with past practice, (v) those items that secure public or statutory obligations or any discount with, borrowing from, or obligations to any FRB or Federal Home Loan Bank, interbank credit facilities, or any transaction by the Company’s Subsidiaries acting in a fiduciary capacity, (vi) 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 business operations at such properties and (iv) such imperfections or irregularities of title or Liens as do not materially affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties.
(b) Each lease or sublease of real property to which the Company or any of its Subsidiaries is a party is listed on Schedule 3.20(b) of the Company Disclosure Scheduleparty, including and all amendments and modifications thereto, and is are in full force and effect. There effect and have not been modified or amended, and there exists no breach or default under any such lease by the Company or any of its Subsidiaries, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company or any of its Subsidiaries, except as would not prevent or materially delay consummation of the Merger and would not have a Material Adverse Effect.
(c) The current use of the facilities located on the Owned Property and the Leased Property does not violate any applicable local zoning or similar land use or government regulations of any Governmental Authority in any material respect.
(d) The Owned Property is not subject to any outstanding purchase options nor has the Company or any of its Subsidiaries entered into any outstanding contracts, agreements, commitments, letters of intent or similar written understandings as of the date hereof with others for the sale, mortgage, pledge, hypothecation, assignment, sublease, lease or other transfer of all or any part of the Owned Property, and no person has any right or option to acquire, or right of first refusal with respect to, the Company's interest in the Owned Property or any part thereof.
(e) Neither the Owned Property nor the Leased Property violates any material provisions of any applicable building code, fire, health or safety regulations, or other governmental ordinances, orders or regulations, of any Governmental Authority, and the Company and its Subsidiaries are in material compliance with all applicable Laws relating to the Owned Property or the Leased Property or any part thereof.
(f) The Company has delivered to Purchaser true, correct and complete copies of all leases relating to the Leased Property and all amendments and modifications thereof (“Leases”). All such Leases are valid, binding and in full force and effect and are enforceable by the Company or its Subsidiaries in accordance with their terms, except (i) that such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors' rights generally; and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The Company and its Subsidiaries have performed all material obligations required to be performed by them to date under each such Lease, and there has been no material breach or default under any such leases by the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other party thereto, nor any such breach or default by the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other party thereto which with notice or lapse of time or both would constitute a breach or an event of default thereunder by the Company or any of its Subsidiaries, and, to the Knowledge of the Company, there exists no default under any such lease or sublease by any other party, nor any event which with notice or lapse of time or both would constitute a breach or default thereunder by such other party. The Company has previously made available to Buyer complete and correct copies of all such leases, including all amendments and modifications theretothereunder.
(c) Schedule 3.20(c) of the Company Disclosure Schedule sets forth a complete and accurate list of all real property owned by the Company or any of its Subsidiaries. No tenant or other party in possession of any of such property has any right to purchase, or holds any right of first refusal to purchase, such properties.
(d) None of the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule and, to the Knowledge of the Company, none of the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule, or the buildings, structures, facilities, fixtures or other improvements thereon, or the use thereof, contravenes or violates any building, zoning, administrative, occupational safety and health or other applicable statute, law, ordinance, rule or regulation in any respect that would reasonably be expected to require expenditures by the Company or any of its Subsidiaries or to result in an impairment in or limitation on the activities presently conducted there. The plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(c) of the Company Disclosure Schedule, and to the Knowledge of the Company, the plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(b) of the Company Disclosure Schedule are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted, are adequate and suitable for the purposes for which they are presently being used and there are no condemnation or appropriation proceedings pending or, to the Knowledge of the Company, threatened against any of such properties or any plants, buildings or other structures thereon.
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Property and Leases. (a) Each of the Company and its Subsidiaries has good good, valid and marketable title to all the real property and all other property owned by it and included in the Company Balance Sheetit, free and clear of all Liens, other than (i) Liens that secure liabilities that are reflected in the Company Balance Sheet or incurred in the ordinary course of business after the date of such balance sheetSheet, (ii) Liens for current taxes and assessments not yet past due or which are being contested in good faithfaith and for which adequate reserves have been established therefor by the Company if required in accordance with GAAP, (iii) inchoate mechanics’ and materialmen’s Liens for construction in progress and other statutory Liens securing payments not past due’s, (iv) workmen’s, repairmen’s, warehousemen’s and ’s, carriers’ or other like Liens arising in the ordinary course of business of the Company or any of its Subsidiaries consistent with past practice, and none of which have a material impact on the use or value of the Company, its Subsidiaries or the applicable real or other property, and (viv) those items pledges or deposits arising in the ordinary course of business that secure public or statutory obligations (the foregoing clauses (i)-(iv), “Permitted Liens”). Neither the Company nor any of its Subsidiaries has received written notice of any violation of and has no Knowledge that it is in breach of any recorded easements, covenants or restrictions affecting any real property or other property interests owned or leased by it, and to the Knowledge of the Company there has not occurred any event which with notice or lapse of time or both would constitute such a breach thereunder by the Company or any discount withof its Subsidiaries, borrowing fromin each case, that would reasonably be expected to result in liabilities to or obligations to any FRB or Federal Home Loan Bank, interbank credit facilities, require expenditures by the Company or any transaction by of its Subsidiaries or to result in an impairment in or limitation on the activities presently conducted thereon, and, to the Knowledge of the Company’s Subsidiaries acting , no other party is in a fiduciary capacity, (vi) violation of any such easements, rights of way, and other similar encumbrances that do not materially affect the value covenants or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties and (iv) such imperfections or irregularities of title or Liens as do not materially affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such propertiesrestrictions.
(b) Each lease or sublease of real property (the “Leased Real Property”) to which the Company or any of its Subsidiaries is a party is listed on Schedule 3.20(b3.21(b) of the Company Disclosure Schedule, including all amendments and modifications thereto, and is in full force and effecteffect (the “Leases”). The Company or its applicable Subsidiary has a valid leasehold interest in all Leased Real Property, free and clear of all Liens, except Permitted Liens and any mortgages or other Liens incurred, created, assumed or permitted to exist and arising by, through or under a landlord or owner of the Leased Real Property. There exists no material breach or default under any such lease Leases by the Company or any of its Subsidiaries, nor any event which with notice or lapse of time or both would constitute a material breach or default thereunder by the Company or any of its Subsidiaries, and, to the Knowledge of the Company, there exists no material breach or default under any such lease Leases or sublease by any other party, nor any event which with notice or lapse of time or both would constitute a material breach or default thereunder by such other party. All rent and other material sums and charges payable by the Company or applicable Subsidiary as tenant under a Lease are current. The Company has previously made available to Buyer complete and correct copies of all such leasesLeases, including all amendments and modifications thereto. The Leases are in full force and effect, enforceable in accordance with their terms and constitute binding obligations of a Company or Subsidiary, as applicable, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). Neither the Merger nor the Bank Merger requires the consent of any other party to a Lease or will result in a breach of or default under any Lease. Schedule 3.21(b) of the Company Disclosure Schedule includes a list of all security deposits held under the Leases, all of which have been paid to, and (to the Knowledge of the Company) are being held by, the applicable landlord in compliance with the applicable Lease and applicable law, and no such security deposit under the Leases has been applied in respect of a breach or default under such Leases; neither the Company nor any Subsidiary of the Company owes, nor will it owe in the future, any brokerage commissions or finder’s fees with respect to such Leases; there are no outstanding tenant improvements, free rent, or other landlord inducement costs in favor of the Company or any Subsidiary; all rents, legal deposits and additional guarantees and any other amounts or charges to the extent due and payable under the Leases have been paid; no Company or Subsidiary has provided or received any written notice of any intention to terminate, any Lease; there are no leases, subleases, licenses, concessions or any other contracts or agreements granting to any person other than the Company or a Subsidiary any right to the possession, use, occupancy or enjoyment of any Leased Real Property; neither the Company nor any Subsidiary has collaterally assigned or granted any security interest in such Lease or any interest therein; there is no Person (other than the Company or its Subsidiaries, as applicable) in possession of the Leased Real Property; no material construction, alteration, decoration or other work due to be performed by any landlord pursuant to any Lease remains to be performed thereunder and all construction allowances or other sums to be paid to the Company or any of its Subsidiaries and all amounts owed to outside contractors or other third parties for work performed by or at the request of the Company or its Subsidiaries with respect to any of the Leased Real Property have been paid in full, to the extent currently due and payable; and the Company (or its Subsidiaries, as applicable) have not vacated or abandoned any of the Leased Real Property or given notice of intent to do so.
(c) Schedule 3.20(c3.21(c) of the Company Disclosure Schedule sets forth a complete and accurate list of all real property owned by the Company or Bank (the “Owned Real Property” and, together with the Leased Real Property, the “Real Property”). Neither the Company nor any Company Subsidiary other than the Company Bank owns and any real property. Schedule 3.21(c) of the Company Disclosure Schedule contains a true, correct and accurate rent roll listing all tenants who lease space in the Owned Real Property, the rent paid, term, security deposit and all other material terms; except as set forth in Schedule 3.21(c) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries. No tenant Subsidiaries has leased or other party in possession otherwise granted to any Person any right to the possession, use, occupancy or enjoyment of any Owned Real Property. True, correct and complete copies of such property all leases to tenants who lease space in the Owned Real Property have been made available to Buyer. Neither the Company nor any of its Subsidiaries has granted any outstanding right to purchase, or holds any right of first refusal to purchase, right of first offer or any similar rights with respect to such properties. The Company has made available to Buyer the most current copies of policies of title insurance for the Owned Real Property, and no claim has been made against any such policy which remains pending. The Company has made available to Buyer copies of the most recent surveys and copies of deeds evidencing fee simple title for the Owned Real Property together with copies of all documents listed as exceptions on such title policy. Except as disclosed on Schedule 3.21(c) of the Company Disclosure Schedule, there are no management agreements pursuant to which any third party manages or operates any Owned Real Property or any portion thereof (the “Management Agreement Documents”). Correct and complete copies of any Management Agreement Documents have been provided to Buyer. Each of any such Management Agreement Documents is valid and binding on the Company or its Subsidiary, and, to the Knowledge of the Company, each other party thereto, subject, in each case, to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and is in full force and effect. Neither the Company nor any of its Subsidiaries has received written notice that it is in default of any obligations under any Management Agreement Document, and, to the Knowledge of the Company, the manager under such Management Agreement Document has not received written notice that it is in default of its obligations under such Management Agreement Document. Except as listed in Schedule 3.21(c) of the Company Disclosure Schedule, none of the Owned Real Property is subject to special flood or mudslide hazards or within the 100-year flood plain.
(d) None of the properties required to be listed on Schedule 3.20(c3.21(c) of the Company Disclosure Schedule and, to the Knowledge of the Company, none of the properties required to be listed on Schedule 3.20(b3.21(b) of the Company Disclosure Schedule, or the buildings, structures, facilities, fixtures or other improvements thereon, or the use thereof, contravenes or violates any building, zoning, administrative, occupational safety and health or other applicable statute, law, ordinance, rule or regulation regulation, or any registered deeds, restrictions of record or other agreements affecting such properties, in any respect that would reasonably be expected to result in liabilities to or require expenditures by the Company or any of its Subsidiaries or to result in an impairment in or limitation on the activities presently conducted there, and, to the Knowledge of the Company, there are no proposed changes therein that would so affect any such property or its use. The plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(c3.21(c) of the Company Disclosure Schedule, and to the Knowledge of the Company, the plants, buildings, structures and equipment located on the properties required to be listed on Schedule 3.20(b3.21(b) of the Company Disclosure Schedule are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted, are adequate and suitable for the purposes for which they are presently being used used; and there are no condemnation or appropriation proceedings pending or, to the Knowledge of the Company, threatened against Company there are no facts or conditions affecting any of such properties or any plants, buildings or other structures thereon.thereon which would interfere in any material respect with the current use, occupancy or operation thereof, in each case other than relating to ordinary course wear and tear or the effects of the passage of time. With respect to any of the properties required to be listed on Schedule 3.21(c) of the Company Disclosure Schedule and, to the Knowledge of the Company, any of the properties required to be listed on Schedule 3.21(b) of the Company Disclosure Schedule, except as listed on Schedule 3.21(d) of the Company Disclosure Schedule, (i) there are no pending or, to the Knowledge of the Company, threatened condemnation proceedings, suits or administrative actions relating to such Real Property or other matters materially affecting adversely the current use, occupancy or value thereof; (ii) there is no renovation or construction project currently being performed or (solely with respect to Leased Real Property, to the Knowledge of the Company) contemplated at such Real Property; (iii) all requisite certificates of occupancy and other permits or approvals required with respect to such Real Property and the occupancy and use thereof have been obtained, the transactions contemplated by this Agreement will not require the issuance of any new or amended certificate of occupancy and, to the Knowledge of the Company, there are no facts that would prevent such Real Property from being occupied by Buyer, after the Closing Date in the same manner as occupied by the Company and/or its Subsidiaries immediately prior to the Closing; (iv) the Company has not entered into any contract for the sale of such Real Property or any constituent or portion thereof, and no lease or other agreement affecting such Real Property contains any rights of first refusal, right of first offer or options to purchase such real property or any portion thereof or any other similar rights; (v) there are no disputes, claims, litigations, investigations, and proceedings affecting such Real Property; (vi) no damage or destruction has occurred with respect to any of the Real Property that would be material to the Company and its Subsidiaries, taken as a whole, whether or not covered by an enforceable insurance policy; (vii) there are currently in effect such insurance policies for the Real Property as are customarily maintained with respect to similar properties utilized for comparable purposes; all premiums due on such insurance policies have been paid by the Company or its Subsidiaries, as applicable; neither the Company nor any of its Subsidiaries has received, and neither the Company nor any of its Subsidiaries has Knowledge of, any written notice or request from any insurance company requesting the performance of any material work or alteration with respect to any Real Property or any portion thereof; neither the Company nor any of its Subsidiaries has Knowledge of, or has received written notice from any insurance company concerning any defects or deficiencies which if not corrected would result in termination of insurance coverage or increase its cost; and
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