Real and Personal Property. (a) Section 3.16(a) of the Company Disclosure Letter sets forth a correct and complete list of all real property owned by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens. (b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto. (c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases. (d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto. (e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease. (f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof.
Appears in 3 contracts
Samples: Merger Agreement (Biohaven Research Ltd.), Merger Agreement (Biohaven Research Ltd.), Merger Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Real and Personal Property. (a) Section 3.16(a3.14(a) of the Company Disclosure Letter sets forth a correct and complete list of all real property owned Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company Owned Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or any a Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, (iv) such parcel is in compliance with all its tangible properties and assets except for Permitted Liens or minor defects applicable Laws in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liensmaterial respects.
(b) Section 3.16(b3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of each leaseall leases, subleasesubleases and other occupancy agreements (together with any amendments, license or similar usemodifications and other supplements thereto, co-working service and occupancy Contract (eachcollectively, a the “LeaseCompany Leases”), in accordance with ) pursuant to which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) and the address of such real property (the “Company Leased Real Property”) as of the date of this Agreement). The Company has provided heretofore made available to Parent a correct true and complete copy copies of each such Lease, and all amendments thereto.
(c) Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, case free and clear of all any Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all Each of the Company Leases for any Company Leased Real Property is in all material respectsfull force and effect and constitutes a legal, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any the applicable Company Subsidiary that is a party thereto, as applicable, and to Subsidiary. To the Knowledge knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to in default (which has not been previously cured) under any agreementCompany Lease, or nor has any outstanding right notice of first offerdefault been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, right 2006, except for any such default or notice of first refusal default, individually or option with respect in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the purchase or sale of any real property or interest thereinextent that such modifications are set forth in the documents previously made available to Parent, and (iii) neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the Knowledge stated maturity date of such Company Lease.
(c) Section 3.14(c) of the CompanyCompany Disclosure Letter sets forth a true, there are no pending Proceedings or Proceedings threatened in writing correct and complete list of all leases, subleases and other occupancy agreements pursuant to take all which the Company or any portion of the Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any interest therein portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by eminent domain the Company or any condemnation proceeding Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(or d) The Company Owned Real Property and the jurisdictional equivalent thereof) Company Leased Real Property constitute all of the real property used by the Company or any sale or disposition Company Subsidiary in lieu thereofthe conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 3 contracts
Samples: Merger Agreement (K Tron International Inc), Rights Agreement (K Tron International Inc), Merger Agreement (Hillenbrand, Inc.)
Real and Personal Property. (a) Section 3.16(a) of Neither the Company Disclosure Letter sets forth a correct and complete list of all real property owned by the Company or nor any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title toowns any real property, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in has owned any real property within the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Lienspast five (5) years.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of and the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases, which Company Leased Real Properties are in all material respects in good operating condition and repair and free from any material defects, reasonable wear and tear excepted.
(d) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect, the Company and each Company Subsidiary have good and marketable title to, or other comparable Contracts rights in, all of the tangible properties and assets that are used in and material to the operation of the business of the Company and each Company Subsidiary, free and clear of all Liens, other than Permitted Liens.
(e) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(ef) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(fg) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to To the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither . Neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to . To the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing or otherwise pending to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof.
Appears in 2 contracts
Samples: Merger Agreement (Asensus Surgical, Inc.), Merger Agreement (Asensus Surgical, Inc.)
Real and Personal Property. (a) Section 3.16(a) Company or one or more of the Company Disclosure Letter sets forth a correct its Subsidiaries has good and complete list of marketable title to all real material personal property assets owned by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real PropertyOwned Assets”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property), free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(db) Each Lease for any Company Leased Real Property is a valid and binding obligation Section 3.19(b) of the Company Disclosure Letter sets forth a complete list of all real property and interests in real property owned, directly or any indirectly, by Company or its Subsidiaries (the “Owned Real Property”). Company or a Subsidiary that is a party thereto, as applicable, of Company has good and valid fee simple title to the Knowledge Owned Real Property free and clear of any liens or encumbrances other than the Company, the other parties theretoPermitted Liens.
(ec) Neither Section 3.19(c) of the Company nor any Disclosure Letter sets forth a true and complete list of all real property leased, subleased or otherwise occupied by Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company its Subsidiaries (the “Leased Real Property or any lenderProperty”) pursuant to written agreements (each, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such a “Lease.
(f) ”). Except as would not reasonably be expected tonot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect: , (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company a Subsidiary has a good and valid leasehold interest in the Leased Real Property; (ii) Company or a Subsidiary has the right to use and occupancy of the Leased Real Property for the full term of the lease or sublease relating thereto, (ii) each such lease or sublease is a legal, valid and binding obligation, enforceable in accordance with its terms, of Company or a Subsidiary and, to the knowledge of Company, the other parties thereto, and Company and its Subsidiaries have not received or delivered notice of any default (with or without notice or lapse of time, or both) with respect to such lease or sublease and (iii) neither the Company nor any Company Subsidiary is a party of its Subsidiaries has assigned its interest under any such lease or sublease or sublet any part of the premises covered thereby.
(d) There are no pending or, to any agreementthe knowledge of Company, or has any outstanding right of first offer, right of first refusal or option threatened condemnation proceedings with respect to the purchase or sale of any real property or interest thereinOwned Assets, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Owned Real Property or Leased Real Property.
(e) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, all Permits necessary in connection with the construction upon, and present use and operation of, the Owned Real Property and the lawful occupancy thereof in the business of Company and its Subsidiaries have been issued by the appropriate Governmental Entities. The current use of the Owned Real Property is, in all material respects, in accordance with the certificates of occupancy relating thereto and the terms of any interest therein such Permits. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, neither Company nor any of its Subsidiaries has received a written notice from any Governmental Entity having jurisdiction over such Owned Real Property that such Owned Real Property is in violation of any Law relating to such Owned Real Property, including setback requirements and zoning restrictions and ordinances, except to the extent that a requirement may be satisfied by eminent domain virtue of being “grandfathered” or any condemnation proceeding otherwise permitted to continue in its current status.
(f) Except as, individually or in the jurisdictional equivalent thereof) aggregate, would not reasonably be expected to have a Material Adverse Effect, each parcel of Owned Real Property is supplied with utilities and other services necessary for the operation of such Owned Real Property and premises as the same is currently operated, all of which utilities and other services are provided via public roads or any sale via permanent, irrevocable appurtenant easements benefiting such Owned Real Property. Each parcel of Owned Real Property abuts on, and has direct vehicular access to, a public road, or disposition has access to a public road via a permanent, irrevocable appurtenant easement benefiting the parcel of Owned Real Property, in lieu thereofeach case, to the extent necessary for the conduct of the business of Company and its Subsidiaries as it is currently being conducted.
Appears in 2 contracts
Samples: Merger Agreement (McKesson Corp), Merger Agreement (PSS World Medical Inc)
Real and Personal Property.
(a) Section 3.16(a4.14(a) of the Company Seller Disclosure Letter sets forth out a correct true and complete list of all real property (other than the Mining Rights and water rights) owned by the Company or Seller Subsidiaries (the “Owned Real Property”). The Seller Subsidiaries are the owners of all right, title and interest in such real property, free and clear of any Company Subsidiary as of Encumbrances, other than Permitted Encumbrances, except where the date of this Agreement. Each of the Company failure to have such rights, title and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do interest would not and will not reasonably be expected to materially decrease impair the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All the use of such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.real property.
(b) Section 3.16(b4.14(b) of the Company Seller Disclosure Letter sets forth a correct true and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any all real property leased or obtains co-working services from or to subleased by any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) of the Seller Subsidiaries, (the “Company Leased Real Property”), other than leased or subleased mining claims. The applicable Seller Subsidiaries set out in Section 4.14(b) as of the date of this Agreement. The Company has provided Parent Seller Disclosure Letter hold a correct valid and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid enforceable leasehold or sublease interests subleasehold interest in all of the Company applicable Leased Real Property, free and clear of all LiensEncumbrances except for Permitted Encumbrances in accordance with the terms set out in the applicable lease or sublease. All such leases or subleases are valid and in full force and effect, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all none of the Leases for any Company Leased Real Property in all material respectsSeller Subsidiaries nor, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication toSeller’s knowledge, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, thereto is in breach of any material breach covenants, conditions or violation of or default obligations contained therein. The Seller Subsidiaries have the right under valid and subsisting leases to use and control all such Lease.
(f) Except as real property, except where the failure to have such right would not reasonably be expected to materially interfere with the use of such real property. Other than as set out in Section 4.14(b) of the Seller Disclosure Letter, the applicable Seller Subsidiaries are in exclusive possession of the Leased Real Property.
(c) Other than as set out in Section 4.14(c) of the Seller Disclosure Letter, the Seller Subsidiaries hold valid and enforceable title to, individually or a valid leasehold or subleasehold interest in, all material buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles, inventory and other items of tangible personal property and other assets used in the aggregate, have a Operations and required to conduct the Operations as currently conducted (the “Personal Property”). All of the Personal Property is in reasonable operating condition having regard to its use and age (ordinary wear and tear excepted). All of the Personal Property is located at the Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, Property other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or finished product inventory which has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof.been sent for processing.
Appears in 2 contracts
Real and Personal Property. (a) Section 3.16(a) To the knowledge of the Company Disclosure Letter sets forth a correct and complete list of all real property owned by Company, the Company and/or one or any Company Subsidiary as more of the date of this Agreement. Each of the Company and each Company Subsidiary has good, its Subsidiaries have valid and marketable fee title to, or valid leasehold or sublease interests or other equivalent use and/or occupancy interests incomparable contract rights in or relating to, all of the real property and personal property necessary for the conduct of the business of the Company and its tangible properties and assets except for Permitted Liens or minor defects in titleSubsidiaries, easementstaken as a whole, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of Liens subject to minor imperfections in title that would not materially affect the Surviving Corporation’s use and enjoyment thereof after the Effective Time. Section 4.13(a) of the Company Disclosure Schedule as of the date hereof sets forth a list of all owned real property and real property subject to a Lease. The Company and/or its Subsidiaries has a valid leasehold interest in the leasehold estates and licenses created by the Leases free and clear of Liens, except where such Liens except for Permitted Lienswould not interfere in any material respect with the conduct of the business of the Company and its Subsidiaries, taken as a whole, as currently conducted on the leased premises. No consent or approval is required to be obtained under any of the Leases, and no material breach, default or right of termination shall arise under any Lease nor does any landlord or other party have the right to increase the amounts payable or charge any sum under any Lease, in each case in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any affiliates of any of the foregoing is, or has an ownership, financial or other interest in, the landlord under any of the Leases.
(b) Section 3.16(b) All of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo Company’s and its Subsidiaries) leases’ material personal property, subleases or otherwise uses or occupies any real property or obtains co-including computers, electronics, leasehold improvements, furnishings, machinery and equipment, is in good repair (ordinary wear and tear excepted), is in good working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Leaseorder and, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge knowledge of the Company, the other parties theretomaterially complies with all applicable Laws.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof.
Appears in 2 contracts
Samples: Merger Agreement (Silicon Storage Technology Inc), Merger Agreement (Silicon Storage Technology Inc)
Real and Personal Property. (a) Section 3.16(a) of Neither the Company Disclosure Letter sets forth a correct and complete list nor any of all its Subsidiaries own any real property owned by property. Neither the Company nor any of its Subsidiaries (nor any predecessor to the Company or any Company Subsidiary as of the date of this Agreementits Subsidiaries) have ever owned any real property. Each of Neither the Company nor any of its Subsidiaries is a party to any agreement or option to purchase any real property or interest therein.
(b) Each lease, sublease and each other agreement (collectively, the “Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in Real Property Leases”) under which the Company or any of the Company its Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies or has the right to use or occupy any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as is valid, binding and in full force and effect. Neither the Company nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any Person the right to use or occupy a material portion of a Company Leased Real Property. No uncured default of a material nature on the part of the date Company or, if applicable, any of this Agreement. The its Subsidiaries or, to the Knowledge of the Company, the landlord thereunder, exists under any Company has provided Parent a correct and complete copy of each such Real Property Lease, and all amendments thereto.
(c) no event has occurred or circumstance exists which, with the giving of notice, the passage of time, or both, would constitute a material breach or default under a Company Real Property Lease. The Company and each Company Subsidiary, as applicable, have of its Subsidiaries has a good and valid leasehold or sublease interests in all interest, subject to the terms of the Company Real Property Leases, in each parcel of Company Leased Real Property, free and clear of all Liens, other than except for Company Permitted Liens. The Company , and each Company Subsidiary enjoy peaceful the Company’s or its Subsidiaries’ possession and undisturbed possession under all quiet enjoyment of the Leases for any Company Leased Real Property in all material respects, and are using under such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation has not been disturbed. As of the Company or any Company Subsidiary that is a party theretodate hereof, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither neither the Company nor any Company Subsidiary of its Subsidiaries has received notice of any written communication frompending, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, norand, to the Knowledge of the Company, there is there any other party alleging that the Companyno threatened, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) condemnation proceeding with respect to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof.
Appears in 2 contracts
Samples: Merger Agreement (Fitlife Brands, Inc.), Merger Agreement (iSatori, Inc.)
Real and Personal Property. (a) Section 3.16(a4.15(a) of the Company Disclosure Letter sets forth Schedule identifies a correct and complete list of all real property owned leased or operated by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has goodits Subsidiaries (including all leasehold, valid and marketable fee title tosub-leasehold, ground leasehold, or valid leasehold other rights to use or occupy any land, buildings, structures, improvements, fixtures, or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects interest in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangementsproperty) (the “Company Leased Real Property”) as that is complete and accurate in all material respects.
(b) Neither the Company nor any of the date of this Agreement. The Company has provided Parent its Subsidiaries owns a correct and complete copy of each such Leasefee interest in real property (including any land, and all amendments theretobuildings, structures, improvements, fixtures or easements).
(c) The Each of the leases relating to Company Leased Real Property is a valid and each Company Subsidiary, as applicable, have valid subsisting leasehold or sublease interests in all interest of the Company Leased Real Property, or any of its Subsidiaries free of sub-tenancies and clear of all Liens, other occupancy rights and Liens (other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects), and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any of its Subsidiaries, enforceable against the Company Subsidiary that is a party thereto, as applicable, and to the Knowledge or any of the Company, the other parties theretoits Subsidiaries in accordance with its terms.
(ed) Neither Other than as set forth in the leases listed in Section 4.15(d) of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other of its Subsidiaries is a party to a Lease for or obligated under any option, right of first refusal or other contractual right to sell, dispose of or lease any of the Company Leased Real Property or any lenderportion thereof or interest therein to any Person (other than pursuant to this Agreement). Neither the Company nor any of its Subsidiaries is a party to any agreement or option to purchase any real property or interest therein.
(e) With respect to the Company Leased Real Property:
(i) true, correct and complete copies of the Company Real Property Leases have been delivered to Parent prior to the date hereof and such Company Real Property Leases have not been amended or modified since that date;
(ii) neither the Company, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any to each Company Subsidiary or such other party, as the case may be, Real Property Lease is in material breach or violation of or default under such Company Real Property Lease, and no event has occurred or failed to occur or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a material breach or default, or permit the termination, modification or acceleration of rent under such Company Real Property Lease;
(iii) none of the Company Leased Real Property has been pledged or assigned by the Company or any of its Subsidiaries or is subject to any Liens (other than pursuant to this Agreement or Permitted Liens);
(iv) the Company does not owe, nor will it owe in the future, any brokerage commissions or finder’s fees with respect to any Real Property Lease; and
(v) other than as set forth in Section 4.15(e) of the Company Disclosure Schedule, the Company has not subleased, licensed or otherwise granted any Person the right to use or occupy any Company Leased Real Property or any portion thereof.
(f) Except as would not reasonably be expected tofor Company Intellectual Property, individually or which is the subject of Section 4.16 of this Agreement, the Company and its Subsidiaries have good and valid title to all of their respective assets and personal property (tangible and intangible) that they purport to own, including all assets and personal property reflected in the aggregate, have a Company Material Adverse Effect: Financial Statements (i) other than to the Knowledge of the Company, no Person, other than extent such assets or properties were sold by the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither since the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion date of the Company Leased Real Property Financial Statements in the Ordinary Course of Business) and have valid leasehold interests in all leased personal property, in each case free and clear of all Liens of any kind or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofcharacter, except for Permitted Liens.
Appears in 2 contracts
Samples: Acquisition Agreement (EverBank Financial Corp), Acquisition Agreement (EverBank Financial Corp)
Real and Personal Property. (a) Neither the Company nor any of its Subsidiaries own any real property or any interest in real property. Except for the Company Leased Real Property, there is no material real property used or intended to be used by the Company or any of its Subsidiaries in, or otherwise related to, the operation of the Company or any of its Subsidiaries.
(b) Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, materially adverse to the Company and its Subsidiaries, taken as a whole, the Company and its Subsidiaries (as applicable) have good and valid title to, or valid leasehold interests in, all of their respective properties and assets, free and clear of all Liens, except for Permitted Liens.
(c) Section 3.16(a3.16(c) of the Company Disclosure Letter sets forth a correct and complete list of all real property owned by the material Company or any Company Subsidiary as of the date of this AgreementLeases. Each of the Company and each Company Subsidiary has goodA true, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Leasematerial Company Lease has been made available to Parent. Except as has not been, and all amendments thereto.
(c) The would not reasonably be expected to be, individually or in the aggregate, materially adverse to the Company and its Subsidiaries, taken as a whole, (i) each material Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary of its Subsidiaries that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
, enforceable in accordance with its terms (eprovided that (I) Neither such enforcement may be subject to applicable bankruptcy, insolvency (including all Laws related to fraudulent transfers), reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights and remedies generally and (II) the remedies 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), (ii) none of the Company nor or any Company Subsidiary of its Subsidiaries is in breach of or default (or, with the giving of notice or lapse of time or both, would be in default) under the terms of, and none has received taken any written communication fromaction resulting in the termination of, acceleration of performance required by, or delivered any written communication toresulting in a right of termination or acceleration under, any other party to a Lease for any material Company Leased Real Property or any lenderLease, norand (iii) as of the date of this Agreement, to the Knowledge of the Company, is there any no other party alleging that the Company, to any material Company Subsidiary or such other party, as the case may be, Lease is in material breach or violation of or default (or, with the giving of notice or lapse of time or both, would be in default) under such the terms of, and none has taken any action resulting in the termination of, acceleration of performance required by, or resulting in a right of termination or acceleration under, any material Company Lease.
(fd) Except as has not been, and would not reasonably be expected toto be, individually or in the aggregate, have materially adverse to the Company and its Subsidiaries, taken as a Company Material Adverse Effect: whole, (i) to the Knowledge Company and its Subsidiaries (as applicable) have exclusive and peaceful possession of the Companyall Company Leased Real Property, (ii) no Person, other than the Company or any Company Subsidiarya Subsidiary of the Company, leases, subleases, licenses, possesses, uses or occupies all or any portion of any the Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) there are no outstanding options, rights of first refusals, rights of first offer or other third-party rights to purchase, use, occupy, sell, assign or dispose of the Company Leased Real Property or any interest therein.
(e) Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, materially adverse to the Company and its Subsidiaries, taken as a whole, as of the date hereof, there are no pending or, to the Knowledge of the Company, there are no pending threatened Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof.
Appears in 2 contracts
Samples: Merger Agreement (Genomic Health Inc), Merger Agreement (Exact Sciences Corp)
Real and Personal Property. (a) Except as disclosed in Section 3.16(a4.14(a) of the Company Disclosure Letter Schedule, each of the Company and the Company Subsidiaries has good and marketable title to, or valid leasehold interests in, all its material properties and assets, free and clear of all Encumbrances.
(b) Section 4.14(b) of the Company Disclosure Schedule sets forth (i) a correct true and complete list of all real property owned by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(bii) Section 3.16(b) of the Company Disclosure Letter sets forth a correct true and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which all real property leased by the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leasescollectively, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased "Real Property”) as of the date of this Agreement"). The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreementlease, assignment or similar arrangement under which the Company or any Company Subsidiary is a lessor, assignor or otherwise makes available for use by any third party any portion of the Real Property.
(c) Each of the Company and the Company Subsidiaries is in compliance in all material respects with the terms of all Real Property leases to which it is a party.
(d) Since December 31, 1997, neither the Company nor any Company Subsidiary has received written notice of any material proceedings, claims or disputes affecting any Real Property, and neither the Company nor any Company Subsidiary has received written notice in the past three years, or has any outstanding right of first offerwritten notice which is currently unresolved, right of first refusal or option with respect to the purchase or sale from any Governmental Entity having jurisdiction over any Real Property of any real property threatened suspension, modification or interest thereincancellation of certificates of occupancy or permits required under applicable law to occupy and use any material Real Property assets as presently occupied or used, and the basis of which has not been cured.
(iiie) to To the Knowledge knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion the Company's and/or the Company Subsidiaries' use and operation of the Company Leased Real Property as presently conducted is not dependent on a nonconforming use or other waiver from a Governmental Entity, the absence of which would materially limit the use of the Real Property or any interest therein by eminent domain or any condemnation proceeding the operations thereon as presently conducted (or the jurisdictional equivalent thereof) or any sale or disposition unless such waiver has in lieu thereoffact been granted).
Appears in 2 contracts
Samples: Merger Agreement (Polyvision Corp), Merger Agreement (Polyvision Corp)
Real and Personal Property. (a) Section 3.16(a3.18(a) of the Company Disclosure Letter Schedules sets forth a correct true and complete list (including street addresses) of all real property owned by the Company or any Company Subsidiary as of the date of this AgreementGroup Companies (the “Owned Real Property” and, together with the Leased Real Property, the “Real Property”). Each Except as set forth in Section 3.18(a) of the Company and each Company Subsidiary has goodDisclosure Schedule, valid (i) the Group Companies have good and marketable fee title toto the Owned Real Property, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens (except for Permitted Liens), (ii) no Owned Real Property is subject to any outstanding options or rights of first refusal to purchase any Owned Real Property, or any portion of any Owned Real Property or interest therein, (iii) no Owned Real Property is subject to any lease, sublease, concession, license, occupancy agreement, outstanding option or right of first refusal to lease, or other contracts or arrangement granting to any Person (other than the Group Companies) the right to occupy any Owned Real Property, or any portion of any Owned Real Property, and (iv) there are no Persons other than the Group Companies in possession of any Owned Real Property. There are currently in effect such insurance policies for the Owned Real Property as are customarily maintained with respect to similar properties utilized for comparable purposes.
(b) Section 3.16(b3.18(b) of the Company Disclosure Letter Schedules sets forth a correct true and complete list (including street addresses) of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any all real property or obtains co-working services from or to leased by any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) of the Group Companies (the “Company Leased Real Property”) and all Real Property Leases pursuant to which any Group Company is a tenant or landlord as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, Group Companies have valid leasehold or sublease interests in all of to the Company Leased Real Property, free and clear of all Liens, other than Liens (except for Permitted LiensLiens or any Liens created pursuant to Indebtedness incurred in the ordinary course of business consistent with past practice). The Company True and each Company Subsidiary enjoy peaceful and undisturbed possession under complete copies of all of the Leases for any Company Leased such Real Property in Leases (including all material respectsamendments, extensions, renewals and are using such Company Leased guaranties with respect thereto) have been made available to Bannix. Each Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is in full force and effect and is a valid valid, legal and binding obligation of the applicable Group Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the enforceable in accordance with its terms against such Group Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, norand, to the Knowledge Company’s knowledge, each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). There is no official written notice of an event of default by any Group Company or, to the Company’s knowledge, is there any other party alleging that counterparty under any Real Property Lease, and, to the Company’s knowledge, any Company Subsidiary no event has occurred which (with or such other party, as the case may be, is in without notice or lapse of time or both) would constitute a material breach or violation of or default under such any Real Property Lease or would permit termination of, or a material modification or acceleration thereof, by any counterparty to any Real Property Lease. The Group Companies’ have not received written notice of any material disputes with respect to any Real Property Lease.
(fc) The Company is not in breach or default of any restrictive covenant affecting the Real Property, 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 restrictive covenant, in each case except as would not reasonably be expected, individually or in the aggregate, to be material to the Group Companies (taken as a whole). To the Company’s knowledge, there are no pending or threatened condemnation, expropriation or eminent domain proceedings with respect to any Real Property.
(d) Except as would not reasonably be expected to, individually or in the aggregate, have be material to the Group Companies (taken as a Company Material Adverse Effect: whole), (i) to the Knowledge use by the Group Companies of the Companyland, no Personbuildings, structures and improvements on the Real Property are in conformity with all applicable Laws, including, without limitation, all applicable zoning or planning Laws, and with all registered deeds, restrictions of record or other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion agreements of any Company Leased record affecting such Real Property, (ii) neither there exists no conflict or dispute with any Governmental Authority, regulatory authority or other person relating to any Real Property or the activities thereon or the occupancy or use thereof of which the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest thereinreceived written notice, and (iii) all requisite certificates of occupancy and other permits or approvals required with respect to the Knowledge land, buildings, structures and improvements on any of the Owned Real Property and the occupancy and use thereof have been obtained and are currently in effect.
(e) To the knowledge of the Company, there are no pending Proceedings damage or Proceedings threatened in writing destruction has occurred with respect to take all or any portion of the Company Leased Real Property that would be material to the Group Companies (taken as a whole), whether or any not covered by an enforceable insurance policy and no Group Company has received notice that the buildings and other structures on the Real Property are not in good and substantial repair.
(f) Each Group Company has good, marketable and indefeasible title to, or a valid leasehold interest therein in or license or right to use, all of the material assets and properties of the Group Companies reflected in the Financial Statements or thereafter acquired by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition Group Companies, except for assets disposed of in lieu thereofthe ordinary course of business.
Appears in 2 contracts
Samples: Business Combination Agreement (Bannix Acquisition Corp.), Business Combination Agreement (Bannix Acquisition Corp.)
Real and Personal Property. (a) Section 3.16(aReal Property. Schedule 4.19(a) of the Company Disclosure Letter sets forth a correct and complete list of all real property properties that are owned by the Company or any Company Subsidiary as of the date of this AgreementCompany Subsidiaries (the "Company Owned Real Property"). Each of the The Company and each Company Subsidiary has good, valid good and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible real properties and assets owned, used or occupied by them except for Permitted Liens such as are no longer used or minor useful in the conduct of its businesses or as have been disposed of in the ordinary and usual course of business and except for defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All Except as set forth in Section 4.19(a) of the Company Disclosure Letter, all such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens and except for (i) statutory Liens of carriers, warehousemen, mechanics, repairmen, workmen and materialmen incurred in the ordinary and usual course of business for amounts not yet overdue or being contested in good faith, (ii) Liens for Taxes not yet due and payable or being contested in good faith in appropriate proceedings during which collection or enforcement is stayed and (iii) Liens that, in the aggregate, do not and will not materially interfere with the ability of the Company and the Company Subsidiaries to conduct business as currently conducted (any or all of such liens under clauses (i), (ii) or (iii), "Permitted Liens.
(b) "). Neither the Company nor any Company Subsidiary has an option to purchase any real property. All of the real property leased by the Company and each of the Company Subsidiaries is identified in Section 3.16(b4.19(a) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which herein referred to as the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “"Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto").
(ci) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all Status of Leases. All leases of the Company Leased Real PropertyProperty are identified in Section 4.19(a)(i) of the Company Disclosure Letter, free and clear true and complete copies thereof have been delivered to Parent. Each of all Liens, other than Permitted Liens. The said leases has been duly authorized and executed by the Company and each or the Company Subsidiary enjoy peaceful party thereto, is in full force and undisturbed possession under all of effect and constitutes the Leases for any Company Leased Real Property in all material respectslegal, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any the Company Subsidiary that is a party thereto, as applicableand is enforceable in accordance with its respective terms, and except to the Knowledge extent that the enforceability may be limited by applicable bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of the Company, the other parties thereto.
(e) Neither creditors' rights generally and subject to general principles of equity. The Company or the Company nor Subsidiary party thereto has not received notice of any Company Subsidiary has received default under any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lenderof said leases, nor, to the Knowledge of the Company, is there has any other party alleging that event occurred which, with notice or the Companypassage of time, any Company Subsidiary or both, would give rise to such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to default. To the Knowledge of the Company, no Person, the other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to each of said leases is not in default under any agreementof said leases and there is no event which, with notice or the passage of time, or has any outstanding right of first offerboth, right of first refusal or option with respect would give rise to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofsuch a default.
Appears in 2 contracts
Samples: Merger Agreement (Foilmark Inc), Merger Agreement (Illinois Tool Works Inc)
Real and Personal Property. (a) Except as disclosed in -------------------------- Section 3.16(a4.14(a) of the Company Disclosure Letter Schedule, each of the Company and the Company Subsidiaries has good and marketable title to, or valid leasehold interests in, all its material properties and assets, free and clear of all Encumbrances.
(b) Section 4.14(b) of the Company Disclosure Schedule sets forth (i) a correct true and complete list of all real property owned by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(bii) Section 3.16(b) of the Company Disclosure Letter sets forth a correct true and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which all real property leased by the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leasescollectively, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased "Real Property”) as of the date of this Agreement"). The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) ------------- Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreementlease, assignment or similar arrangement under which the Company or any Company Subsidiary is a lessor, assignor or otherwise makes available for use by any third party any portion of the Real Property.
(c) Each of the Company and the Company Subsidiaries is in compliance in all material respects with the terms of all Real Property leases to which it is a party.
(d) Since December 31, 1997, neither the Company nor any Company Subsidiary has received written notice of any material proceedings, claims or disputes affecting any Real Property, and neither the Company nor any Company Subsidiary has received written notice in the past three years, or has any outstanding right of first offerwritten notice which is currently unresolved, right of first refusal or option with respect to the purchase or sale from any Governmental Entity having jurisdiction over any Real Property of any real property threatened suspension, modification or interest thereincancellation of certificates of occupancy or permits required under applicable law to occupy and use any material Real Property assets as presently occupied or used, and the basis of which has not been cured.
(iiie) to To the Knowledge knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion the Company's and/or the Company Subsidiaries' use and operation of the Company Leased Real Property as presently conducted is not dependent on a nonconforming use or other waiver from a Governmental Entity, the absence of which would materially limit the use of the Real Property or any interest therein by eminent domain or any condemnation proceeding the operations thereon as presently conducted (or the jurisdictional equivalent thereof) or any sale or disposition unless such waiver has in lieu thereoffact been granted).
Appears in 2 contracts
Samples: Merger Agreement (Steelcase Inc), Merger Agreement (Steelcase Inc)
Real and Personal Property. (ai) Section 3.16(a5.1(r)(i) of the Company Disclosure Letter sets forth a correct and complete list list, as of the date of this Agreement, of all real property owned by the Company or and any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good(the “Owned Real Property”). Except as would not, valid and marketable fee title to, individually or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not reasonably be expected to materially and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which adversely affect the Company or any and its Subsidiaries taken as a whole, the Company and its Subsidiaries have good and marketable title to all of the Company Subsidiaries has leasehold interests, are Owned Real Property free and clear of all Liens except for other than Permitted Liens. Neither the Company nor its Subsidiaries has granted, or is obligated under, any option, right of first offer, right of first refusal or similar contractual right to sell or dispose of the Owned Real Property or any portion thereof or interest therein.
(bii) Section 3.16(b5.1(r)(ii) of the Company Disclosure Letter sets forth a correct and complete list of each leaselist, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liensleases, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respectssubleases, and are using such Company Leased Real Property for the purposes permitted licenses, or similar agreements that cover real property used by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary of its Subsidiaries (each such lease, license or sublease, a “Real Property Lease”) and sets forth the street address of the real property that is a party thereto, as applicable, the subject of any Real Property Lease (the “Leased Real Property,” and to together with the Knowledge of the CompanyOwned Real Property, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased “Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Property”). Except as would not reasonably be expected tonot, individually or in the aggregate, reasonably be expected to materially and adversely affect the Company and its Subsidiaries taken as a whole, (A) the Company and its Subsidiaries have a valid leasehold interest in the Leased Real Property free and clear of all Liens other than Permitted Liens and each Real Property Lease is valid and in full force and effect, (B) neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Real Property Lease, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Real Property Lease, and neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any Real Property Lease, (C) no Person other than the Company and its Subsidiaries leases, subleases, licenses or otherwise has a right to use or occupy any of the Real Property, and (D) all improvements located on the Real Property are in sufficiently good condition and repair (ordinary wear and tear excepted) to allow the business of the Company and its Subsidiaries to be operated in the ordinary course as currently operated and as presently proposed to be operated. A true, complete and accurate copy of each material Real Property Lease has previously been made available to Parent.
(iii) All material tangible assets (including Owned Real Property and Leased Real Property) of the Company and its Subsidiaries are, in the aggregate (and with due consideration for reasonable wear and tear and the age of each specific tangible asset), in sufficient operating condition and repair, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof.
Appears in 2 contracts
Samples: Merger Agreement (Conagra Brands Inc.), Merger Agreement (Pinnacle Foods Inc.)
Real and Personal Property. The Company does not own any real property. Schedule 4.9A attached hereto (the “Real Properties Schedule”) lists the common street addresses of all real properties and interests therein leased by the Company, and Schedule 4.9B attached hereto (the “Real Properties Encumbrances Schedule”) lists the mortgages, pledges, liens or security interests affecting such real properties and interests therein. Except as set forth in Schedule 4.9A or Schedule 4.9B:
(a) Section 3.16(a) the Company has a valid leasehold estate to each of the Company Disclosure Letter sets forth a correct respective real properties listed in the Real Properties Schedule and complete list of has good title to all real property tangible personal properties and other assets shown as owned by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company on its books and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible records (except for properties and assets except for Permitted Liens acquired under installment purchase contracts or minor defects held pursuant to the leases disclosed in titlethe Contracts Schedule or not required to be disclosed in such Schedule), subject to easements, restrictive covenants conditions and similar encumbrances restrictions of record, taxes not yet due and payable, rights of way, zoning regulations and occupancy permit requirements and matters disclosed on the Real Properties Encumbrances Schedule, which are not material, individually or impediments that, in the aggregate, do not ;
(b) with respect to each leased and will not materially decrease subleased parcel of the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties real property in which the Company has a leasehold or any of subleasehold interest as set forth in Schedule 4.9A (the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “LeaseLeases”), each of the Leases is in full force and effect and the Company holds a valid and existing leasehold or subleasehold interest under each of the Leases. Sellers have delivered to Buyer complete and accurate copies of each of the Leases including all amendments and modifications thereto. With respect to each Lease: (i) the Lease is legal, valid, binding, enforceable and in full force and effect in accordance with which and subject to its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and limitations on the availability of equitable remedies and other matters affecting the landlord’s interests; (ii) neither the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that to the Company, any Company Subsidiary or such other party, as the case may beLease, is in material breach or violation default, and no event has occurred which, with notice or lapse of time, would constitute such a breach or default or permit termination, modification or acceleration under the Lease; (iii) the Lease has not been modified in any respect, except to the extent that such modifications are disclosed by the documents delivered to Buyer and there are no disputes between the parties to the Lease; (iv) the Company has not assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in the Lease; and (v) the transactions contemplated by this Agreement do not require the consent of any party to such Lease (or if such consent is required, Sellers shall deliver such consent to Buyer prior to the Closing).
(fc) Except All components of all buildings, equipment, structures and other improvements included within the real property as would not reasonably be expected toset forth in Schedule 4.9A (the “Improvements”) are in good repair and in good condition to operate the Company’s businesses as currently operated. To the Company’s Knowledge, there are no facts or conditions affecting any of the Improvements which would, individually or in the aggregate, have interfere in any material respect with the use, occupancy or operation thereof as currently used, occupied or operated. All water, gas, electrical, steam, compressed air, telecommunication, sanitary and storm sewage lines and systems and other similar systems, as installed and operating, are sufficient to enable the real properties set forth in Schedule 4.9A to be used and operated in the manner currently being used and operated. Each Improvement has direct access to a public street adjoining the real properties on which such Improvement is situated over the driveways and accessways currently being used in connection with the use and operation of such Improvement and no existing accessway crosses or encroaches upon any property or property interest. No Improvement or portion thereof is dependent for its access, operation or utility on any land, building or other improvement not included in the real properties set forth in Schedule 4.9A.
(d) Except as set forth on Schedule 4.9B, the Company Material Adverse Effect: (i) to has good title to, or a valid leasehold interest in, all real and personal property and assets used in connection with the Knowledge operation of the businesses of the Company, no Personfree and clear of all mortgages, pledges, security interests, encumbrances, charges or other liens (other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (iiPermitted Liens) neither the Company nor any Company Subsidiary is a party and such property and assets are in good working condition subject to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, normal wear and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereoftear.
Appears in 1 contract
Samples: Stock Purchase Agreement (Commercial Vehicle Group, Inc.)
Real and Personal Property. (a) Section 3.16(a6.13(a) of the Company Disclosure Letter sets forth a correct true and complete list of all real property owned by the Company or any Company Subsidiary list, as of the date hereof, of this Agreement. Each all material NA Real Property that is owned by Parent or any Parent Subsidiary and that is used or occupied in the current operation or conduct of the Company and each Company Subsidiary has goodNorth American Business (the “Owned Real Property”), valid and marketable fee title toincluding the address thereof. There are no condemnation or eminent domain proceedings pending or, to the Knowledge of Parent, threatened in writing with respect to the Owned Real Property. There are no outstanding options to purchase or valid leasehold lease or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value rights of such properties and assets or materially interfere with its ability first refusal to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or purchase any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted LiensOwned Real Property or any portions thereof or interests therein.
(b) Section 3.16(b6.13(b) of the Company Disclosure Letter sets forth a correct true and complete list list, as of the date hereof, of all material NA Real Property in which Parent or any Parent Subsidiary holds a leasehold interest or an occupancy right and that is used or occupied in the current operation or conduct of the North American Business (the “Leased Real Property” and, together with the Owned Real Property, the “Real Property”). Parent has made available to Purchaser a true and complete copy of each lease, sublease, license or similar useoccupancy agreement pursuant to which such rights have been granted, co-working service including all amendments, modifications and occupancy Contract (each, a “Lease”), in accordance with which other supplements thereto underlying the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”. With respect to each Leased Real Property:
(i) as there are no condemnation or eminent domain proceedings pending or, to the Knowledge of Parent, threatened in writing; and
(ii) to the Knowledge of Parent, there are no outstanding options to purchase or rights of first refusal to purchase any of the date Leased Real Property or any portions thereof or interests therein or contracts relating to the right of this Agreement. The Company a third party to sublease or occupy any Leased Real Property or any portions thereof, that in each case, has provided been or would reasonably be expected to be material to the Parent and the Parent Subsidiaries, taken as a correct and complete copy of each such Lease, and all amendments theretowhole.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests Real Property (i) has been maintained in all of material respects in accordance with normal industry practice, (ii) is in good operating condition and repair (subject to normal wear and tear) in all material respects and (iii) is suitable for the Company Leased purposes for which it is presently used. The other tangible NA Assets are in good condition, reasonable wear and tear excepted, in all material respects.
(d) Parent and the Parent Subsidiaries have, in all material respects, good and valid fee simple title to the Owned Real Property, good, valid and enforceable leasehold interests in the Leased Real Property and valid title to the other tangible assets included in the NA Assets, in each case free and clear of all Liens, except for (i) Liens securing indebtedness reflected in the Financial Statements, (ii) Liens consisting of zoning, building or land use Laws, planning restrictions or permits, which are not violated by the current use and occupation of such Real Property, (iii) easements, rights-of-way, encroachments, covenants and other than Permitted Liens. The Company restrictions or limitations on the use or occupancy of real property or irregularities in title thereto which do not materially impair the use, occupancy, value or operation of such property as it is presently used in connection with the North American Business, (iv) Liens for current Taxes, assessments or governmental charges or levies on property not yet due and payable or which are being contested in good faith by appropriate proceedings in accordance with applicable Laws and for which appropriate reserves have been established in accordance with IFRS or GAAP, as the context requires, (v) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business or by operation of Law for amounts not yet delinquent or the amount or validity of which are being contested in good faith by appropriate proceedings and, in each Company Subsidiary enjoy peaceful case, for which appropriate reserves have been established in accordance with IFRS or GAAP, as the context requires, (vi) Liens arising pursuant to applicable minimum pension standards legislation for amounts not yet due and undisturbed possession under all payable, (vii) Liens which have been placed by any developer, landlord or other third party on any Leased Real Property and subordination or similar agreements relating thereto that do not impair in any material respect the occupancy, operation or use of the Leases for any Company such Leased Real Property in all material respectsthe North American Business as currently conducted, (viii) Liens discharged at or prior to Closing and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(dix) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as Liens which would not reasonably be expected tonot, individually or in the aggregate, have a Company Material Adverse Effect: reasonably be expected to materially and adversely affect the use, occupancy, operation or value of such assets in the North American Business as currently conducted (the items in clauses (i) to the Knowledge of the Companythrough (ix), no Personcollectively, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof“Permitted Liens”).
Appears in 1 contract
Real and Personal Property. Attached hereto as Schedule 6.16 is an accurate list, including substantially complete descriptions as of the Audited Balance Sheet Date, of all the real and personal property excluding aircrafts or aircraft parts (awhich in the case of personal property had an original cost in excess of $25,000) Section 3.16(aowned or where the Company or any NSJ Company is a lessee, including true and correct copies of leases for equipment and properties on which are situated buildings, warehouses and other structures used in the operation of the busi ness of the Company or any NSJ Company and including an indication as to which assets were formerly owned by any Stockholder or affiliate (which term, as used herein, shall have the meaning ascribed thereto in Rule 144(a)(1) promulgated under the Securities Act of 1933, as amended (the "Securities Act")) of the Company Disclosure Letter sets or any NSJ Company. Except as set forth a correct on Schedule 6.16, all of the Company's and complete list each NSJ Company's leasehold improvements, facilities, equipment and other material items of tangible property and assets are in good operating condition and repair, subject to normal wear and maintenance, are usable in the regular and ordinary course of business and conform to all real property applicable laws, ordinances, codes, rules and regulations, and Authorizations relating to their construction, use and operation. All leases set forth on Schedule 6.16 have been duly authorized, executed and delivered and constitute the legal, valid and binding obligations of the Company and each NSJ Company, as applicable, and, to the knowledge of any Individual Stockholder, no other party to any such lease is in default thereunder and such leases constitute the legal, valid and binding obligations of such other parties. All fixed assets used by the Company or any NSJ Company in the operation of its business are either owned by the Company or such NSJ Company or leased under an agreement set forth on Schedule 6.16. The Company, the NSJ Companies or the Stockholders have heretofore delivered to UniCapital copies of any Company Subsidiary as of the date of this Agreement. Each of the Company title reports and each Company Subsidiary has good, valid and marketable fee title to, insurance policies received or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which held by the Company or any of NSJ Company. The Company and the Company Subsidiaries has leasehold interests, are free and clear Stockholders have indicated on Schedule 6.16 a summary description of all Liens except for Permitted Liens.
(b) Section 3.16(b) plans or projects involving the opening of new operations, expansion of any existing operations or the Company Disclosure Letter sets forth a correct and complete list acquisition of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or existing business to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation which management of the Company or any NSJ Company Subsidiary that is a party thereto, as applicable, and has devoted any significant effort or expenditure in the two-year period prior to the Knowledge date of the Companythis Agreement which have not been terminated or abandoned and which, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than if pursued by the Company or any Company Subsidiarysuch NSJ Company, possesses, uses would require additional expenditures of significant efforts or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option capital other than with respect to the purchase acquisition of aircraft or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofaircraft parts.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (Unicapital Corp)
Real and Personal Property. (a) Section 3.16(a3.18(a) of the Company Disclosure Letter Schedules sets forth a correct true and complete list (including street addresses) of all real property owned by the Company or any Company Subsidiary as of the date of this AgreementGroup Companies (the “Owned Real Property” and, together with the Leased Real Property, the “Real Property”). Each Except as set forth in Section 3.18(a) of the Company and each Company Subsidiary has goodDisclosure Schedule, valid (i) the Group Companies have good and marketable fee title toto the Owned Real Property, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens (except for Permitted Liens), (ii) no Owned Real Property is subject to any outstanding options or rights of first refusal to purchase any Owned Real Property, or any portion of any Owned Real Property or interest therein, (iii) no Owned Real Property is subject to any lease, sublease, concession, license, occupancy agreement, outstanding option or right of first refusal to lease, or other contracts or arrangement granting to any Person (other than the Group Companies) the right to occupy any Owned Real Property, or any portion of any Owned Real Property, and (iv) there are no Persons other than the Group Companies in possession of any Owned Real Property. There are currently in effect such insurance policies for the Owned Real Property as are customarily maintained with respect to similar properties utilized for comparable purposes.
(b) Section 3.16(b3.18(b) of the Company Disclosure Letter Schedules sets forth a correct true and complete list (including street addresses) of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any all real property or obtains co-working services from or to leased by any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) of the Group Companies (the “Company Leased Real Property”) and all Real Property Leases pursuant to which any Group Company is a tenant or landlord as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, Group Companies have valid leasehold or sublease interests in all of to the Company Leased Real Property, free and clear of all Liens, other than Liens (except for Permitted LiensLiens or any Liens created pursuant to Indebtedness incurred in the ordinary course of business consistent with past practice). The Company True and each Company Subsidiary enjoy peaceful and undisturbed possession under complete copies of all of the Leases for any Company Leased such Real Property in Leases (including all material respectsamendments, extensions, renewals and are using such Company Leased guaranties with respect thereto) have been made available to BOA. Each Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is in full force and effect and is a valid valid, legal and binding obligation of the applicable Group Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the enforceable in accordance with its terms against such Group Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, norand, to the Knowledge Company’s knowledge, each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). There is no official written notice of an event of default by any Group Company or, to the Company’s knowledge, is there any other party alleging that counterparty under any Real Property Lease, and, to the Company’s knowledge, any Company Subsidiary no event has occurred which (with or such other party, as the case may be, is in without notice or lapse of time or both) would constitute a material breach or violation of or default under such any Real Property Lease or would permit termination of, or a material modification or acceleration thereof, by any counterparty to any Real Property Lease. The Group Companies’ have not received written notice of any material disputes with respect to any Real Property Lease.
(fc) The Company is not in breach or default of any restrictive covenant affecting the Real Property, 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 restrictive covenant, in each case except as would not reasonably be expected, individually or in the aggregate, to be material to the Group Companies (taken as a whole). To the Company’s knowledge, there are no pending or threatened condemnation, expropriation or eminent domain proceedings with respect to any Real Property.
(d) Except as would not reasonably be expected to, individually or in the aggregate, have be material to the Group Companies (taken as a Company Material Adverse Effect: whole), (i) to the Knowledge use by the Group Companies of the Companyland, no Personbuildings, structures and improvements on the Real Property are in conformity with all applicable Laws, including, without limitation, all applicable zoning Laws, and with all registered deeds, restrictions of record or other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion agreements of any Company Leased record affecting such Real Property, (ii) neither there exists no conflict or dispute with any Governmental Authority, regulatory authority or other person relating to any Real Property or the activities thereon or the occupancy or use thereof of which the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest thereinreceived written notice, and (iii) all requisite certificates of occupancy and other permits or approvals required with respect to the Knowledge land, buildings, structures and improvements on any of the Owned Real Property and the occupancy and use thereof have been obtained and are currently in effect.
(e) To the knowledge of the Company, there are no pending Proceedings damage or Proceedings threatened in writing destruction has occurred with respect to take all or any portion of the Company Leased Real Property that would be material to the Group Companies (taken as a whole), whether or any not covered by an enforceable insurance policy and no Group Company has received notice that the buildings and other structures on the Real Property are not in good and substantial repair.
(f) Each Group Company has good, marketable and indefeasible title to, or a valid leasehold interest therein in or license or right to use, all of the material assets and properties of the Group Companies reflected in the Financial Statements or thereafter acquired by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition Group Companies, except for assets disposed of in lieu thereofthe ordinary course of business.
Appears in 1 contract
Samples: Business Combination Agreement (BOA Acquisition Corp.)
Real and Personal Property. (a) Neither the Company nor any Company Subsidiary owns any real property. Section 3.16(a) of the Company Disclosure Letter sets forth a correct and complete list of all real property owned by the Company or any Company Subsidiary as of within the date of this Agreementpast five (5) years. Each Neither the Company nor any Company Subsidiary retains any liabilities or obligations from any real property set forth on Section 3.16(a) of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted LiensDisclosure Letter.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of and the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases, which Company Leased Real Properties are in all material respects in good operating condition and repair and free from any material defects, reasonable wear and tear excepted.
(d) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect, the Company and each Company Subsidiary have good and marketable title to, or other comparable Contracts rights in, all of the tangible properties and assets that are used in and material to the operation of the business of the Company and each Company Subsidiary, free and clear of all Liens, other than Permitted Liens.
(e) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(ef) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(fg) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to To the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither . Neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to . To the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing or otherwise pending to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof.
Appears in 1 contract
Real and Personal Property. (a) Section 3.16(a) of the Company Disclosure Letter sets forth a correct and complete list of all real property owned by the The Company or any a Group Company Subsidiary as of the date of this Agreement. Each of the Company has good and each Company Subsidiary has good, valid and marketable indefeasible fee simple title to, or in the case of Leased Real Properties, a valid leasehold or other equivalent use and/or occupancy interests interest in, all of its tangible properties and assets except for Permitted Liens Owned Real Property or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of Property and the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Tangible Property, free and clear of all Liens, Liens other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respectsNo condemnation Action is pending or, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge knowledge of the Company, threatened with respect to any of the other parties theretoOwned Real Property or Leased Real Property.
(eb) Neither Schedule 3.19(b) of the Company nor Disclosure Schedule sets forth the address of each Owned Real Property. Except as set forth on Schedule 3.19(b) of the Company Disclosure Schedule, no Group Company has subleased, licensed or otherwise granted any Person the right to use or occupy or collaterally assigned or granted any security interest in any such Owned Real Property or any portion thereof other than Permitted Liens. None of the buildings on the Owned Real Property are in need of maintenance or repairs, ordinary wear and tear and maintenance excepted, that would be material to the Group Companies, taken as a whole. No Group Company Subsidiary is party to any contract or option to purchase any real property or interest in real property. The present use of the Owned Real Property, or any portion thereof, and the improvements erected on the Owned Real Property, do not breach, violate or conflict with in any material respect any Laws, covenants, conditions or restrictions or other agreements of record applicable thereto and binding on a Group Company or the Owned Real Property.
(c) Schedule 3.19(c) of the Company Disclosure Schedule sets forth the address of each Leased Real Property, and a true and complete list of all Leases for each such Leased Real Property. The Company has made available to Parent and Merger Sub a true and complete copy of each such Lease document (including all amendments, extensions, renewals, guaranties and other agreements with respect thereto). Except as set forth in Schedule 3.19(c) of the Company Disclosure Schedule, with respect to each of the Leases: (i) such Lease is a legal, valid, and binding obligation, and is enforceable against the applicable Group Company and, to the Company’s knowledge, the other party thereto and is in full force and effect, subject to General Enforceability Exceptions; (ii) to the Company’s knowledge, no Group Company is in breach or default under such Lease and no event has occurred and no circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, except to the extent such breach or default has not been and would not reasonably be expected to be material to the Group Companies, taken as a whole, (iii) no Group Company has received any written communication from, or delivered any written communication to, notice from any other party to a Lease for that such other party intends to terminate, not renew, or renegotiate in any material respect the terms of any such Lease and (iv) except as set forth in Schedule 3.19(c) of the Company Disclosure Schedule, the Group Companies have not subleased, licensed or otherwise granted any Person the right to use or occupy such Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Leaseportion thereof.
(fd) Except as would not reasonably be expected toThe facilities, machinery, equipment, furniture, leasehold improvements, fixtures, vehicles, structures, related capitalized items and other tangible property that are, individually or in the aggregate, have a material to any Group Company Material Adverse Effect: (ithe “Tangible Property”) are in good operating condition and repair, ordinary wear and tear excepted, subject to continued repair and replacement in accordance with the Knowledge Ordinary Course of Business, are suitable for their intended use, and are adequate to support the business of the CompanyGroup Companies. Since January 1, no Person2020, other than the Company or Tangible Property has been maintained and repaired by a qualified Person and in accordance with prudent industry standards. Since January 1, 2020, there has not been any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither significant interruption in the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge operations of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion business of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or Group Companies due to inadequate maintenance of the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofTangible Property.
Appears in 1 contract
Samples: Merger Agreement (Cactus, Inc.)
Real and Personal Property. (ai) Section 3.16(a5F(i) of the Company Disclosure Letter sets forth (a) the address of each parcel of Leased Real Property, (b) the name of the current landlord under such Leases, and is a correct true and complete list of all real property owned by Leases for each such parcel of Leased Real Property, and (c) the amount of monthly (or other periodic, as the case may be) base or fixed rent payable for the month of (or period containing) May 2013. No Seller has subleased, licensed or otherwise granted to any Person the right to use or occupy such Leased Real Property or any portion thereof.
(ii) The Company or any Company Subsidiary as one of the date of this Agreement. Each Subsidiaries has a valid leasehold interest in and to each of the Company and each Company Subsidiary has goodLeased Real Properties, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except other than Permitted Encumbrances. The current use of the Leased Real Property is, in all material respects, in accordance with the certificates of occupancy relating thereto and the terms of any Licenses and Permits relating thereto. There is no pending or, to the Knowledge of the Company, threatened, appropriation, condemnation or similar action affecting the Leased Real Property. There has been no material destruction, damage or casualty with respect to the Leased Real Property. There has been no collateral assignment of the Leases or any security deposit paid or held thereunder, nor are there any Liens on such security deposits created by the Company or any of its Subsidiaries. No security deposit or portion thereof deposited with respect to any Lease for Permitted Liensthe Leased Real Property has been applied in respect of any breach or alleged breach or default under such Lease which has not been restored, in full. There are no brokerage commissions now due or owing, or which may come due during the stated term of such Lease or any renewal thereof with respect to any Lease of the Leased Real Property.
(biii) Except (a) as set forth on Section 3.16(b5F(iii) of the Company Disclosure Letter sets forth a correct attached hereto and complete list of each lease(b) for Permitted Encumbrances, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and one of its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real PropertySubsidiaries owns, free and clear of all Liens, other than Permitted Liens. or has a contract, license or lease to use, all of the personal property and assets shown on the Latest Balance Sheet or acquired thereafter.
(iv) The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would its Subsidiaries do not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of own any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofproperty.
Appears in 1 contract
Real and Personal Property. (a) Section 3.16(aPart 3.6(a) of the Company Disclosure Letter sets forth a correct and complete list of lists all real property estate owned by the Company or any Company Subsidiary as (the “Owned Real Property”), including the BLM Serial Number and claim name of each unpatented mining claim. Sellers have delivered to Buyer copies of the date of this Agreement. Each of the Company location certificates and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in instruments by which the Company acquired the Owned Real Property and copies of all surveys and other documents in the possession of Sellers or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liensrelating to the Owned Real Property.
(b) Section 3.16(b) With respect to the unpatented mining claims comprising all of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract Owned Real Property (each, a the “LeaseClaims”), ): (a) the Claims were properly located in accordance with which applicable Federal and state laws and regulations; (b) all assessment work requirements for the Claims have been performed and all filings and recordings of proof of performance have been made properly and all Federal annual unpatented mining claim maintenance and rental fees have been paid properly and timely; (c) the Claims are in good standing and the Company or any Company Subsidiary (other than SpinCo has good title to and its Subsidiaries) leasesowns the entire undivided legal and equitable interest in the claims, subleases or otherwise uses or occupies any real property or obtains co-working services from or subject to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as paramount title of the date of this Agreement. The Company has provided Parent a correct United States; (d) there are no conflicts between the Claims and complete copy of each such Lease, and all amendments theretothird party unpatented mining claims.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of Owned Real Property is owned by the Company Leased Real Property, free and clear of all LiensEncumbrances, variances, or limitations of any nature, other than Permitted Liens. The Company Encumbrances and each Company Subsidiary enjoy peaceful and undisturbed possession under all as set forth in Part 3.6(c) of the Leases for any Company Leased Real Property in all material respectsDisclosure Letter. There are no buildings, plants, and structures located on the Owned Real Property. There are using such Company Leased no buildings, structures, fixtures, or other improvements primarily situated on adjoining property that encroach on any part of the Owned Real Property for Property. No Third Party has a right to acquire any interest in the purposes permitted by the applicable LeasesOwned Real Property.
(d) Each Lease for The Company does not own any tangible personal property. [The Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would does not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of lease any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofestate.]
Appears in 1 contract
Samples: Stock Purchase Agreement (Fischer Watt Gold Co Inc)
Real and Personal Property. (a) Section 3.16(aSchedule 4.10(a) of the Company Disclosure Letter sets forth a correct and complete list of all (i) the real property owned by the Company or any Company Subsidiary as of its Subsidiaries (the date of this Agreement. Each of “Owned Real Property”) and (ii) the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which real property leased by the Company or any of the Company its Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”). All leases relating to Leased Real Property are identified on Schedule 4.10(a) as of (each a “Lease” and collectively, the date of this Agreement“Leases”). The Company has provided made available to Parent a correct and Merger Sub accurate and complete copy copies of all the Leases. With respect to each such Leaseof the Leased Real Property and Owned Real Property, and all amendments thereto.except as set forth on Schedule 4.10(a) could not reasonably be expected to have a Company Material Adverse Effect:
(ci) The the Company and each Company Subsidiaryor a Subsidiary of the Company, as applicable, have valid and enforceable leasehold interests to the leasehold estate in the Leased Real Property granted to the Company or sublease interests in all such Subsidiary, as applicable, pursuant to each pertinent Lease, except as such enforceability may be limited by General Enforceability Exceptions;
(ii) each of the Leases has been duly authorized and executed by the Company or such Subsidiary, as applicable, and is in full force and effect;
(iii) neither the Company nor such Subsidiary is in default under any of the Leases, nor, to the Company’s Knowledge, has any event occurred which, with notice or the lapse of time, or both, would give rise to a default by the Company or such Subsidiary, as applicable;
(iv) to the Company’s Knowledge no landlord under the Leases is in default under the Leases and no event has occurred that, with notice or the lapse of time, or both, would give rise to a default by any landlord;
(v) there are no outstanding options, rights of first offer or rights of first refusal to purchase any Owned Real Property or any portion thereof or interest therein;
(vi) the Company or the applicable Subsidiary is in peaceful and undisturbed possession of the Owned Real Property and the Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all there are no contractual or legal restrictions that preclude or restrict the ability of the Leases for any Company Leased or such Subsidiary to use such Owned Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.for which it is currently being used;
(dvii) Each Lease for neither the Company nor any Company Subsidiary has subleased, licensed or otherwise granted to any Person the right to use or occupy any portion of the Owned Real Property or Leased Real Property is a valid Property, and binding obligation none of the Company or any Company Subsidiary that has received written notice of any claim of any Person to the contrary. Except as set forth on Schedule 4.10(a) and Permitted Exceptions, there are no contracts or agreements outstanding for the sale, exchange, Encumbrance, lease or transfer of any of the Owned Real Property or Leased Real Property, or any portion thereof;
(viii) use of the Owned Real Property and the Leased Real Property in the United States for the various purposes for which it is a party theretopresently being used is permitted as of right under applicable urbanization, as applicablezoning and other land use laws and is not subject to “permitted non-conforming” use or structure classifications;
(ix) all buildings, structures, fixtures and other improvements included in the Owned Real Property or Leased Real Property (collectively, the “Improvements”) are in material compliance with all applicable laws; and
(x) the Improvements are in commercially reasonable operating condition and repair, ordinary wear and tear excepted and with due regard to the age of such Improvements, and are suitable for the purposes for which they are being used and currently planned to the Knowledge of the Company, the other parties theretobe used.
(eb) Neither Except as set forth on Schedule 4.10(b) or as disclosed in the Most Recent Balance Sheet, the Company nor or one of its Subsidiaries has good and marketable fee simple title to the Owned Real Property and valid leasehold interests in the Leased Real Property, in each case free and clear of any Company Subsidiary has received any written communication fromEncumbrances (other than the Permitted Exceptions). Except as set forth on Schedule 4.10(b) or as specifically disclosed in the Most Recent Balance Sheet, or delivered any written communication toand except with respect to Owned Real Property, any other party to a Lease for any Company Leased Real Property or any lenderleased personal property, nor, the Company and each of its Subsidiaries have good title to the Knowledge all of the Companyother tangible personal property and assets shown on the Most Recent Balance Sheet or acquired after the date of the Most Recent Balance Sheet, is there free and clear of any Encumbrances, except for (i) Encumbrances disclosed in the Most Recent Balance Sheet, (ii) Taxes, fees, assessments or other party alleging governmental charges that are not delinquent or remain payable without penalty, (iii) carriers’, warehousemens’, mechanics’, landlords’, materialmens’, repairmens’ or other similar Encumbrances arising in the Companyordinary course of business, (iv) Encumbrances consisting of pledges or deposits required in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation or to secure liability to insurance carriers, (v) Encumbrances on any property acquired or held by the Company Subsidiary or its Subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for the purpose of financing (or refinancing) all or any part of the cost of acquiring such other partyproperty, (vi) Encumbrances securing capital lease obligations, (vii) any interest or title of a lessor or sublessor, as the case may belessor or sublessor, is in material breach under any lease and any precautionary uniform commercial code financing statements filed under any lease, (viii) Encumbrances set forth on Schedule 4.10(b) and (ix) Encumbrances of record or violation imperfections of or default under such Lease.
(f) Except as would not reasonably be expected totitle that are not, individually or in the aggregate, have a Company Material Adverse Effect: (i) to material in character, amount or extent and that do not materially detract from the Knowledge value or materially interfere with the present use of the Company, no Person, other than assets subject thereto or affected thereby (the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof“Permitted Exceptions”).
Appears in 1 contract
Samples: Merger Agreement (Helen of Troy LTD)
Real and Personal Property. (a) As of the date hereof, the real property described in Section 3.16(a3.14(a)(i) of the Company Disclosure Letter sets forth a correct and complete list Schedule constitutes all of all the real property owned in fee simple by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, Subsidiaries (other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
Tower Interests or Access Rights) (b) the “Owned Real Property”). Except as set forth in Section 3.16(b3.14(a)(ii) of the Company Disclosure Letter sets forth a correct and complete list of each leaseSchedule, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary one of its Subsidiaries (other than SpinCo i) have good and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or valid indefeasible fee simple title to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Owned Real Property, free and clear of all Liens, Liens other than Permitted Liens. The Company , (ii) are in sole and each Company Subsidiary enjoy peaceful and undisturbed exclusive possession under all of the Leases for Owned Real Property and there are no leases, licenses, occupancy agreements or any Company Leased other similar arrangements pursuant to which any third party is granted the right to use and occupy the Owned Real Property, other than pursuant to Permitted Liens, (iii) have sufficient right of ingress and egress to the Owned Real Property in all material respectsrespects and enjoy peaceful and quiet possession thereof in all material respects and (iv) there are no outstanding options or rights of first offer or refusal to purchase the Owned Real Property.
(b) As of the date hereof, the real property described in Section 3.14(b)(i) of the Company Disclosure Schedule constitutes all of the real property leased or subleased by the Company and its Subsidiaries as tenant or subtenant from any third party (other than any of the Tower Interests, Access Rights, any lease of property pursuant to a co-location and/or interconnection agreement, indefeasible right of use (IRU) agreement, license or occupancy agreement, easements, or servitudes) (such property, the “Leased Real Property”, and are using such the leases, subleases, licenses and occupancy agreements with respect thereto, the “Leases”). Except as set forth in Section 3.14(b)(ii) of the Company Disclosure Schedule, with respect to the Leased Real Property for and the purposes permitted by the applicable Leases.
: (di) Each each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, in full force and to the Knowledge of the Company, the other parties thereto.
effect (e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to be material to the Knowledge of Company and its Subsidiaries, taken as a whole), subject to the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real PropertyEnforceability Exception, (ii) neither the Company nor any Company Subsidiary is a of its Subsidiaries, nor to the Company’s Knowledge any other party to a Lease, has materially violated any agreementprovision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a material default under the provisions of such Lease, and neither the Company nor any of its Subsidiaries has received notice (whether written or, to the Company’s Knowledge, oral) that it has materially breached, violated or defaulted under any outstanding right Lease, (iii) the possession and quiet enjoyment of first offer, right of first refusal the real property demised by the Leases by the Company or option applicable Subsidiary party to such Lease has not been materially disturbed and there are no material disputes with respect to such Lease, (iv) neither the purchase Company nor any of its Subsidiaries has collaterally assigned or sale granted any other security interest in such Lease, other than Permitted Liens and (v) neither the Company nor any of its Subsidiaries has subleased, licensed or otherwise granted any third party the right to use or occupy any Leased Real Property.
(c) As of the date hereof and with respect to all material easements, access rights, rights of way, railroad crossing agreements, any lease of property pursuant to a co-location and/or interconnection agreement, indefeasible right of use (IRU) agreement, license or occupancy agreement, fiber optic licenses and related access agreements, and other similar material real property rights necessary for the operation of the business of the Company and its Subsidiaries as it is presently conducted (other than the Tower Interests) (the “Access Rights” and the agreement granting such Access Rights, “Access Agreements”): (i) each Access Agreement is legal, valid, binding, enforceable and in full force and effect in all material respects, subject to the Enforceability Exceptions, (ii) there are no material disputes with respect to such Access Rights, (iii) there are no Liens on the Company’s or interest thereinits Subsidiaries’ interests created by such Access Rights, other than Permitted Liens, and (iiiiv) neither the Company nor any Subsidiary has subleased, licensed or otherwise granted any third party the right to use or occupy such Access Rights or any material portion thereof, in each case other than in the Ordinary Course.
(d) All material Improvements have been maintained in accordance with prudent industry practices and applicable Laws in all material respects. To the Knowledge of the Company, there are no condemnation or eminent domain proceedings pending Proceedings or Proceedings threatened with respect to the Company’s Real Property, except as would not reasonably be expected to have, individually or in writing to take all or any portion the aggregate, a Material Adverse Effect.
(e) As of the date hereof, the interests described in Section 3.14(e)(i) of the Company Leased Real Property Disclosure Schedule constitute all of the Towers used in connection with the operation of the business of the Company and its Subsidiaries. Except as set forth in Section 3.14(e)(ii) of the Company Disclosure Schedule, the Company or one of its Subsidiaries: (i) has good and valid title or enforceable leasehold interest or license in, or in the case of easements and IRUs, valid rights to use and/or occupy, in all of the Tower Interests, free and clear of all Liens other than Permitted Liens, subject to the Enforceability Exception, (ii) is in sole and exclusive possession of the Towers, other than pursuant to Permitted Liens, (iii) has sufficient right of ingress and egress to the Towers in all material respects and enjoys peaceful and quiet possession thereof, (iv) there are no outstanding options or rights of first offer or refusal to purchase the Tower Interests owned by the Company or any interest therein of its Subsidiaries, and (v) the possession and quiet use and enjoyment of the Towers has not been disturbed in any material respect and there are no material disputes with respect to any Tower Interests. To the Knowledge of the Company, all material Tower Interests owned by eminent domain the Company or any condemnation proceeding (or Subsidiary and which are in operation have been maintained reasonably consistent with past practice in all material respects. To the jurisdictional equivalent thereof) Knowledge of the Company, all Towers owned by the Company or any sale Subsidiary and currently in operation are in compliance with any applicable rules and regulations of the Federal Aviation Administration in all material respects. To the Knowledge of the Company, each Tower owned by the Company or disposition any Subsidiary and currently in lieu thereofoperation was constructed and is operated and maintained in accordance with relevant engineering and industry standards, except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. To the Knowledge of the Company, each Tower owned by the Company or any Subsidiary and currently in operation is structurally sound and in good working order to the extent necessary for its current use, except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. During the period since January 1, 2018, and, to the Knowledge of the Company for the periods prior to its ownership, neither the Company nor any of its Subsidiaries has received any written notice alleging that any Tower owned by the Company or any Subsidiary failed any inspections, is in violation of any applicable Laws, or is structurally unsound, in each case, except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(f) The Company and its Subsidiaries have good title to, or valid leasehold interests in, all personal property and assets reflected on the Company Balance Sheet or acquired after the Company Balance Sheet Date, except as have been disposed of since the Company Balance Sheet Date in the Ordinary Course, free and clear of all Liens other than Permitted Liens. All such property is in reasonably good working order and condition in all material respects (normal wear and tear excepted).
Appears in 1 contract
Samples: Merger Agreement (Cable One, Inc.)
Real and Personal Property. (a) Section 3.16(a3.17(a) of the Company Seller Disclosure Letter Schedule sets forth a correct true and complete list of all real property owned by the Company or any Company Subsidiary of its Subsidiaries as of the date of this AgreementAgreement (the “Owned Real Property”). Each The Company has title in fee simple, free and clear of Encumbrances (other than Permitted Encumbrances), to all of the Owned Real Property. With respect to each such parcel of Owned Real Property: (i) there are no written leases, subleases, licenses, concessions or other agreements granting any Person (other than the Company or any Subsidiary thereof) the right of use or occupancy of any portion of such parcel; and (ii) there are no outstanding rights of first refusal, rights of first offer or options to purchase such parcel or interest therein.
(b) Section 3.17(b) of the Seller Disclosure Schedule sets forth a true and complete list, as of the date hereof, of all of the material leases, material subleases or other material instruments or material permits pursuant to which the Company or any of its Subsidiaries holds a leasehold or subleasehold estate or other right to use or occupy any interest in real property owned by another Person (collectively, the “Company Leases”), and each Company Subsidiary has good, valid and marketable fee title to, leased or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value subleased parcel of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties real property in which the Company or any of its Subsidiaries is a tenant, subtenant or occupant thereunder (the “Leased Real Property”). The Company Leases contain the entire agreement between the landlord of each Leased Real Property and the Company Subsidiaries has leasehold interests, are free or its Subsidiary and clear of all Liens except for Permitted Liensthere is no other Contract between the landlord and the Company or its Subsidiary affecting the Leased Real Property.
(bc) Section 3.16(b) of Neither the Company Disclosure Letter sets forth nor any of its Subsidiaries is a correct and complete list of each party to any lease, sublease, license concession agreement, or similar use, co-working service and use or occupancy Contract (each, a “Lease”), in accordance with agreement under which the Company or any Company Subsidiary (other than SpinCo and of its Subsidiaries) leasesSubsidiaries is a landlord, subleases sublandlord, licensor, grantor of occupancy rights or otherwise uses or occupies any real property or obtains cosub-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (lessor of the “Company Leased Real Property”) as , other than any of the date of this Agreement. The foregoing with the Company has provided Parent or a correct and complete copy of each such Lease, and all amendments theretoSubsidiary thereof.
(cd) The Company and each Company Subsidiary, or its Subsidiaries own all tangible personal property reflected as applicable, have valid leasehold or sublease interests owned in all of the Company Leased Real PropertyBalance Sheet, free and clear of all LiensEncumbrances other than Permitted Encumbrances or Encumbrances arising pursuant to the terms of the ABL Facility (and related documentation), the Indenture (and related documentation) or other Contracts entered into in the ordinary course of business, except any such personal property that was sold or otherwise disposed of since the date of the Balance Sheet or is sold or otherwise disposed of in accordance with, or as contemplated by, the terms set forth herein or the other Transaction Documents. All the tangible personal property purchased or otherwise acquired by the Company and its Subsidiaries since the Balance Sheet Date is owned by the Company or its Subsidiaries free and clear of all Encumbrances, other than Permitted LiensEncumbrances or Encumbrances arising pursuant to the terms of the ABL Facility (and related documentation), the Indenture (and related documentation) or other Contracts entered into in the ordinary course of business, except any such personal property that was sold or otherwise disposed of since the date of the purchase or other acquisition thereof or is sold or otherwise disposed of in accordance with, or as contemplated by, the terms set forth herein or the other Transaction Documents. The As of immediately following the Closing, the tangible personal property owned by the Company or its Subsidiaries shall not be subject to any Encumbrances pursuant to the ABL Facility or the Indenture. A copy of the fixed asset register of the Company and each Company Subsidiary enjoy peaceful of its Subsidiaries as of March 31, 2012, has been delivered to Purchaser prior to the date hereof. Such register contains a complete and undisturbed possession under all of the Leases for any Company Leased Real Property correct list in all material respects, and are using such Company Leased Real Property for respects of the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation fixed assets of the Company or any Company Subsidiary that is a party theretoand its Subsidiaries as of March 31, as applicable, and to the Knowledge of the Company, the other parties thereto2012.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (United Maritime Group, LLC)
Real and Personal Property. (a) Section 3.16(a) of the Company Disclosure Letter sets forth a correct and complete list of all real property owned by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary or one or more of its subsidiaries has good, valid good and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all of its tangible properties real and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants personal property and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Propertyassets, free and clear of all Liens, other than Permitted Liens. The Company Encumbrances and each Company Subsidiary enjoy peaceful and undisturbed possession those Liens to be released under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable LeasesSection 6.14.
(db) Each Lease for As of the date of this Agreement, the Company and its subsidiaries do not own any real property.
(c) Section 4.13(c) of the Company Leased Real Property is Disclosure Letter sets forth a valid true and binding obligation complete list, as of the date of this Agreement, of each lease, sublease, license, colocation agreement or other occupancy agreement in respect of any real property to which the Company or any Company Subsidiary that of its subsidiaries is a party as lessee, sublessee, licensee or occupant (each such lease, sublease, license, colocation agreement or other occupancy agreement, together with any amendments thereto, as applicableand any lease, sublease, license, colocation agreement or other occupancy agreement entered into after the date hereof that would have been required to be listed on Section 4.13(c) of the Company Disclosure Letter, a “Real Property Lease” and the real property demised under or subject to each Real Property Lease, a “Leased Property”). Complete and accurate copies of each Real Property Lease have been delivered to Parent, and no such Real Property Lease has been modified, amended, waived or terminated since the date of such delivery. With respect to the Knowledge Leased Properties, except as set forth in Section 4.13(c) of the CompanyCompany Disclosure Letter, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge as of the Companydate of this Agreement, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Companyeach Real Property Lease is valid, no Person, other than binding and in full force and effect and is enforceable by the Company or any Company Subsidiaryone of its subsidiaries (as applicable) against the other party or parties thereto in accordance with its terms, possesses, uses or occupies all or any portion of any Company Leased Real Propertysubject to the Bankruptcy Exceptions, (ii) neither the Company nor any Company Subsidiary or one of its subsidiaries (as applicable) has performed all material obligations required to be performed by it under each Real Property Lease and is a party to any agreementnot (with or without notice or lapse of time, or has both) in breach or default in any outstanding right of first offermaterial respect thereunder beyond any applicable cure period, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings other party to any Real Property Lease is (with or Proceedings threatened without notice or lapse of time, or both) in writing breach or default in any material respect thereunder, (iv) the delivery and execution of this Agreement and the consummation of the transactions contemplated hereunder do not require the consent of the landlord or any other person under any such Real Property Lease (v) none of the Company or its subsidiaries have subleased, licensed or otherwise granted anyone the right to take all use or occupy any Leased Property or any portion thereof or have collaterally assigned or granted any other security interest in any such leasehold estate or any interest therein, and (vi) the Company has not received written notice of any expropriation, condemnation or other proceeding in eminent domain pending or, to the Knowledge of the Company, threatened, affecting any portion of a Leased Property.
(d) Except for the Real Property Leases and the Leased Properties, none of the Company Leased Real Property or any of its subsidiaries occupy, are legally obligated for, have an interest therein in, or otherwise use, any land, buildings, facilities, locations or offices, and nor do they have any rights or obligations to acquire such interests.
(e) The assets, properties and rights owned by eminent domain the Company and its subsidiaries, including the Contracts to which the Company or any condemnation proceeding of its subsidiaries is a party, comprise all of the assets, properties and rights utilized by the Company and its subsidiaries in the operation of its business as presently conducted, and are sufficient in all material respects to permit the Company and its subsidiaries to operate their businesses as presently conducted. No Unitholder nor any of their affiliates (other than the Company and its subsidiaries) owns or has any interest in any of the jurisdictional equivalent thereof) assets, properties or rights utilized by the Company or any sale or disposition of its subsidiaries in lieu thereofthe operation of their businesses as presently conducted.
Appears in 1 contract
Real and Personal Property. (a) Section 3.16(a) of the Company Parent Disclosure Letter sets forth a correct true and complete list of all real property owned owned, leased or licensed by the Company Bank or its Subsidiaries or otherwise occupied by the Bank or any Company Subsidiary as of the date of this Agreement. Each of the Company its Subsidiaries.
(b) The Bank and each Company Subsidiary has its Subsidiaries have good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, to all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any material real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, owned by them free and clear of all Liens, except Permitted Liens. To the knowledge of Parent or the Bank, there are no outstanding options, rights of first offer or refusal or other preemptive rights or purchase rights with respect to any such owned real property. There are no pending or, to Parent’s or the Bank’s knowledge, threatened, condemnation or similar proceedings affecting such owned real property or any portion thereof.
(c) The Bank and its Subsidiaries have good, valid and marketable title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all material tangible personal property owned by them, free and clear of all Liens (other than Permitted Liens). The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all Each of the Leases for any Company Leased Real Property in Bank and its Subsidiaries has complied with the terms of all material respectsleases to which it is a party, and all such leases are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicablein accordance with their respective terms and in full force and effect, and there is not under any such lease any material existing default by the Bank or such Subsidiary or, to the Knowledge knowledge of Parent or the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication toBank, any other party to a Lease for any Company Leased Real Property thereto, or any lender, nor, event which with notice or lapse of time or both would constitute such a default by the Bank or such Subsidiary or to the Knowledge knowledge of Parent or the CompanyBank, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may beexcept for any such noncompliance, is default or failure to be in material breach or violation of or default under such Lease.
(f) Except as full force and effect that would not reasonably be expected tonot, individually or in the aggregate, reasonably be expected to have a Company Bank Material Adverse Effect: . All rent and other sums and charges due and payable under such leases have been paid in full. Section 3.16(c) of the Parent Disclosure Letter sets forth all material leases of the Bank and its Subsidiaries as of the date hereof.
(d) Except as set forth on Section 3.16(d) of the Parent Disclosure Letter, other than (i) to properties for which the Knowledge Bank or any of its Subsidiaries is landlord or sublessor, (ii) properties the Bank or its Subsidiaries own as satisfaction on a debt previously contracted, or (iii) as set forth on Section 3.19 of the CompanyParent Disclosure Letter, there are no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or Persons in possession of any portion of any Company Leased Real Property, (ii) neither of the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property owned or interest thereinleased by the Bank or its Subsidiaries other than the Bank or its Subsidiaries, and (iii) no Person other than the Bank or its Subsidiaries has the right to the Knowledge of the Company, there are no pending Proceedings use or Proceedings threatened in writing to take all or occupy for any purpose any portion of real property owned or leased by the Company Leased Real Property Bank or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofits Subsidiaries.
Appears in 1 contract
Real and Personal Property. (a) Section 3.16(a) of the Company Disclosure Letter sets forth a correct and complete list of all real property owned by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary its subsidiaries has good, valid good and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all of its tangible properties real and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants personal property and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Propertyassets, free and clear of all Liens, other than Permitted Liens. The Company and each its subsidiaries own, lease or otherwise possess a valid legal interest in all Company Subsidiary enjoy peaceful Properties necessary and undisturbed possession under all sufficient for the conduct of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable LeasesBusiness.
(db) Each Lease Section 3.13(b) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of all land, buildings, facilities, locations, offices and other real property interests owned in fee simple by the Company or any of its subsidiaries (each, an “Owned Property”), including, for any Company Leased Real Property is each such Owned Property, a valid legal description (with acreage and binding obligation square footage), the name of the record owner, and the permitted use thereof. With respect to the Owned Properties, (i) none of the Company or its subsidiaries have leased or otherwise granted anyone the right to use or occupy any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Owned Property or any lenderportion thereof, nor(ii) there are no outstanding contracts, options, rights of first offer or rights of first refusal in favor of any third parties to purchase any Owned Property or any portion thereof or interest therein and (iii) there is no condemnation or other proceeding in eminent domain, pending or, to the Knowledge of the Company, is there threatened, affecting any other party alleging that the Company, parcel of Owned Property or any Company Subsidiary portion thereof or such other party, as the case may be, is in material breach or violation of or default under such Leaseinterest therein.
(fc) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (iSection 3.13(c) to the Knowledge of the CompanyCompany Disclosure Letter sets forth a true and complete list, no Personas of the date of this Agreement, of each lease, sublease, license or other than occupancy agreement in respect of any real property to which the Company or any of its subsidiaries is a party as lessee, sublessee, licensee or occupant (each such lease, sublease, license or other occupancy agreement, together with any amendments thereto, and any lease, sublease, license or other occupancy agreement entered into after the date hereof that would have been required to be listed on Section 3.13(c) of the Company SubsidiaryDisclosure Letter, possessesa “Real Property Lease” and the real property demised under or subject to each Real Property Lease, uses a “Leased Property”). With respect to the Leased Properties, (i) each Real Property Lease is legal, valid, binding and in full force and effect and is enforceable by the Company or occupies all one of its subsidiaries (as applicable) against the other party or any portion of any Company Leased Real Propertyparties thereto in accordance with its terms, subject to the Bankruptcy Exceptions, (ii) neither the Company nor any Company Subsidiary or one of its subsidiaries (as applicable) has performed all material obligations required to be performed by it under each Real Property Lease and is a party to any agreementnot (with or without notice or lapse of time, or has both) in breach or default in any outstanding right of first offermaterial respect thereunder, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings other party to any Real Property Lease is (with or Proceedings threatened without notice or lapse of time, or both) in writing breach or default in any material respect thereunder, (iv) the delivery and execution of this Agreement and the consummation of the transactions contemplated hereunder do not require the consent of the landlord or any other person under any such Real Property Lease, (v) none of the Company or its subsidiaries have subleased, licensed or otherwise granted anyone the right to take all use or occupy any Leased Property or any portion of the Company Leased Real Property thereof or have collaterally assigned or granted any other security interest in any such leasehold estate or any interest therein by and (vi) there is no condemnation or other proceeding in eminent domain pending or, to the Knowledge of the Company, threatened, affecting any portion of a Leased Property. Complete and accurate copies of each Real Property Lease have been delivered to Buyer and no such Real Property Lease has been modified, amended, waived or terminated since the date of such delivery.
(d) Section 3.13(d) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of each material easement, access right, encroachment agreement, right of way, crossing agreement and other similar real property right to which the Company or any condemnation proceeding of its subsidiaries benefits from or is a party (the “Real Property Interests”, and the Owned Properties, Leased Properties and Real Property Interests, collectively, shall hereinafter be known as the “Company Properties”). With respect to the Real Property Interests, (i) such Real Property Interest is legal, valid, binding and in full force and effect and is enforceable by the Company or one of its subsidiaries (as applicable) against the jurisdictional equivalent thereofother party or parties thereto in accordance with its terms, subject to the Bankruptcy Exceptions, (ii) the Company or one of its subsidiaries (as applicable) has performed all material obligations required to be performed by it under each Real Property Interest and is not (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder, (iii) to the Knowledge of the Company, no other party to any Real Property Interest is (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder, (iv) the delivery and execution of this Agreement and the consummation of the transactions contemplated hereunder do not require the consent of the land owner or any sale other person under any such Real Property Interest, (v) none of the Company or disposition its subsidiaries have leased, licensed or otherwise granted anyone the right to use or occupy any Real Property Interest or any portion thereof or have collaterally assigned or granted any other security interest in lieu thereofany such Real Property Interest or any interest therein and (vi) there is no condemnation or other proceeding in eminent domain pending or, to the Knowledge of the Company, threatened, affecting any portion of a Real Property Interest.
(e) Except for the Company Properties, none of the Company or any of its subsidiaries occupy, are legally obligated for, have an interest in, or otherwise use, any land, buildings, facilities, locations or offices, and nor do they have any rights or obligations to acquire such interests.
(f) None of Seller, the Manager, any Member or any other affiliate of Seller (other than the Company and its subsidiaries) owns or has any interest in any of the assets, properties or rights utilized by the Company or any of its subsidiaries in the operation of the Business as presently conducted.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Virgin Trains USA LLC)
Real and Personal Property. (a) Section 3.16(a) of the No Acquired Company Disclosure Letter sets forth a correct and complete list of all owns any real property owned by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liensproperty.
(b) Section 3.16(bSchedule 3.06(b) of the lists all real estate leased by any Acquired Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant lessee, sub-lessee, or subtenant or in accordance with other occupancy or service arrangements) assignee (the “Company Leased Real Property”) as ), including a description of the date of this Agreementpremises leased and the Acquired Company that leases the same. The Company has provided Parent a correct and complete copy All Leased Real Property is leased pursuant to valid written leases listed in Schedule 3.17(a). Such leases contain the entire agreement between the landlord of each such Leaseof the leased premises and the Acquired Company, and all amendments theretothere is no other Contract between the landlord and any Acquired Company affecting such Leased Real Property. No Acquired Company leases any Leased Real Property as a lessor or sub-lessor.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease Acquired Companies’ interests in the Leased Real Property are owned by the respective Acquired Companies free and clear of all Encumbrances, variances, or limitations of any nature, other than Permitted Encumbrances and as set forth in Schedule 3.06(c). To the Company Knowledge of Founder, certificates of occupancy are in full force and effect for each location of Leased Real Property, and the uses thereof being made by the Acquired Companies do not violate any applicable zoning, subdivision, land use, or other Legal Requirement. No Third Party has a right to acquire the Acquired Companies’ interests in the Leased Real Property. To the Knowledge of the Founder, there is no existing or proposed plan to modify or realign any street or highway or any existing or proposed eminent domain Proceeding that would result in the taking of all or any part of any parcel of Leased Real Property or that would prevent or hinder the continued use of any such parcel as used by the Acquired Companies. None of the Leased Real Property is located within a flood plain for flood insurance purposes.
(d) The Acquired Companies own all tangible personal property reflected as owned in the Balance Sheet (other than inventory sold since the Balance Sheet Date in the Ordinary Course of Business), free and clear of all LiensEncumbrances, other than Permitted LiensEncumbrances and as set forth in Schedule 3.6(d). The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of All the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted tangible personal property purchased or otherwise acquired by the applicable Leases.
Acquired Companies since the Balance Sheet Date (d) Each Lease for any Company Leased Real Property is a valid other than inventory acquired and binding obligation of sold since the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or Balance Sheet Date in the aggregate, have a Company Material Adverse Effect: (iOrdinary Course of Business) to is owned by the Knowledge Acquired Companies free and clear of the Company, no Personall Encumbrances, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, Permitted Encumbrances and (iii) to the Knowledge as set forth in Schedule 3.06(d). A copy of the Company, there are no pending Proceedings or Proceedings threatened in writing fixed asset register of each Acquired Company has been delivered to take all or any portion Buyer. Each such register contains a complete and correct list of the fixed assets of the applicable Acquired Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or as of the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofdate specified.
Appears in 1 contract
Samples: Stock and Membership Interest Exchange Agreement (Coconnect, Inc.)
Real and Personal Property. (a) Section 3.16(a6.15(a) of the Company Disclosure Letter Schedule sets forth a correct true and complete list of all Contracts under which the BP Group leases, subleases or licenses real property owned (collectively, the “Leases” and each description of the real property demised under the Leases, collectively, the “Leased Properties”). All Leases arose in arm’s-length transactions in the ordinary course of business. The BP Group has, and immediately following the Closing and after giving effect thereto will have, a good and valid leasehold title to each Leased Property, subject only to the terms and conditions of the applicable Lease and to any Permitted Liens. Except as set forth in Section 6.15(a) of the Disclosure Schedule, the BP Group has not leased or otherwise granted to any Person the right to use or occupy any Leased Property or any portion thereof.
(b) No member of the BP Group owns any real property.
(c) There is no pending, or, to the Knowledge of the Partnership, threatened, appropriation, condemnation or like Action materially affecting the Leased Properties or any part thereof or any sale or other disposition of any part thereof in lieu of condemnation or other matters materially affecting and impairing the current use, occupancy or value thereof.
(d) The use by the Company BP Group of the Leased Properties or any Company Subsidiary portion thereof and the improvements erected thereon, does not, in any material respect, breach, violate or conflict with (i) any covenants, conditions or restrictions applicable thereto or (ii) the terms and provisions of the applicable Lease.
(e) Taking into account (i) the services that will be provided by members of the Cantor Group or the Partnership Group to the BP Group after the Closing and (ii) the services provided by members of the BGC Partners Group to the BP Group as of the date of this Agreement. Each of Agreement Date, the Company BP Group will have immediately following the Closing, good and each Company Subsidiary has good, valid and marketable fee title to, or a valid and enforceable leasehold interest in or other equivalent use and/or occupancy interests inlicense to, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in of the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets whether real, personal, tangible or intangible, that are necessary to carry on the Business from and properties after the Closing Date in which all material respects in substantially the Company or any of same manner as conducted immediately prior to the Company Subsidiaries has leasehold interestsClosing, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) . As of the Company Disclosure Letter sets forth a correct Closing Date, the BP Group will hold sufficient cash and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which cash equivalents to operate the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property Business in all material respects, and are using such Company Leased Real Property for respects in the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation ordinary course of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Leasebusiness.
(f) Except as would not reasonably be expected toThe facilities, machinery, equipment, furniture, leasehold improvements, fixtures, vehicles, structures, related capitalized items and other tangible property that are, individually or in the aggregate, have a Company Material Adverse Effect: (i) material to the Knowledge BP Group, taken as a whole (the “Tangible Property”), are in good operating condition and repair, subject to continued repair and replacement in the ordinary course of business, and are suitable for their intended use. In the past three (3) years there has not been any significant interruption of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge operations of the Company, there are no pending Proceedings or Proceedings threatened in writing Business due to take all or any portion inadequate maintenance of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofTangible Property.
Appears in 1 contract
Real and Personal Property. (a) Section 3.16(aSchedule 3.9(a) contains an accurate and complete list, as of the date hereof, of all real property leases and subleases or real property licenses, including all amendments, modifications and supplements thereto to the extent currently in effect, used by the Company Group or to which a member of the Company Disclosure Letter sets forth Group is a correct party as lessee (the “Real Property Leases,” and the properties leased thereunder, the “Leased Real Property”). The leasehold interests relating to the Real Property Leases are free and clear of all Liens, other than Permitted Liens. Each of the Real Property Leases is legal, valid and binding on, and enforceable against, the Company or one of its Subsidiaries, as applicable, and, to the Knowledge of the Company, on and against the other party or parties thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and none of the Company or any of its Subsidiaries have given or received any written notice of material default under any Real Property Lease which default is continuing under said Real Property Lease and, to the Knowledge of the Company Group, no counterparty thereto is in default and no event or circumstance exists that would constitute a default thereunder. There are no written or oral subleases, licenses, concessions or other similar contracts granting to any Person other than the Company or any of its Subsidiaries the right to use or occupy any Leased Real Property.
(b) Schedule 3.9(b) contains an accurate and complete list list, as of the date hereof, of all real property owned by the Company or any Company Subsidiary as of the date of this Agreement. Each a member of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in Group (the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted“Owned Real Property”). All such assets and properties, other than assets and properties in which the Company or any The applicable members of the Company Subsidiaries has leasehold interests, are free Group have good and clear of valid fee simple title to all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Owned Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all None of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Owned Real Property is a valid and binding obligation subject to any right or option of the Company any other Person to purchase or any Company Subsidiary that is a party thereto, as applicablelease an interest in such Owned Real Property, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, no condemnation or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, norrezoning proceeding is pending or, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or threatened with respect to such other party, as the case may be, is in material breach or violation of or default under such LeaseOwned Real Property.
(fc) Except as would not reasonably be expected toThe Company Group collectively own or hold under valid leases or otherwise has the valid and lawful right to use, individually or all material machinery, equipment and other personal property (excluding, for the avoidance of doubt, Intellectual Property rights) necessary for the conduct of their businesses in all material respects substantially in the aggregatesame manner as currently conducted, have a Company Material Adverse Effect: (i) to the Knowledge and none of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party such properties are subject to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, Liens except for Liens identified on Schedule 3.9(c) and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofPermitted Liens.
Appears in 1 contract
Real and Personal Property. (a) Section 3.16(a3.17(a) of the Company Bank Disclosure Letter sets forth a correct true and complete list of all real property owned owned, leased or licensed by the Company Bank or its Subsidiaries or otherwise occupied by the Bank or any Company Subsidiary as of the date of this Agreement. Each of the Company its Subsidiaries.
(b) The Bank and each Company Subsidiary has its Subsidiaries have good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, to all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, owned by them free and clear of all Liens, except Permitted Liens. To the knowledge of the Bank, there are no outstanding options, rights of first offer or refusal or other preemptive rights or purchase rights with respect to any such owned real property. There are no pending or, to the Bank’s knowledge, threatened, condemnation or similar proceedings affecting such owned real property or any portion thereof. All real property and fixtures used in or relevant to the business, operations or financial condition of the Bank and its Subsidiaries are in good condition and repair.
(c) The Bank and its Subsidiaries have good, valid and marketable title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all material tangible personal property owned by them, free and clear of all Liens (other than Permitted Liens). The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all Each of the Leases for any Company Leased Real Property in Bank and its Subsidiaries has complied with the terms of all material respectsleases to which it is a party, and all such leases are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation in accordance with their respective terms and in full force and effect, and there is not under any such lease any material existing default by the Bank or such Subsidiary or, to the knowledge of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication toBank, any other party to thereto, or any event which with notice or lapse of time or both would constitute such a Lease default, except for any Company Leased Real Property such noncompliance, default or any lender, nor, failure to the Knowledge of the Company, is there any other party alleging be in full force and effect that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected tonot, individually or in the aggregate, reasonably be expected to have a Company Bank Material Adverse Effect: . All rent and other sums and charges due and payable under such leases have been paid in full. Section 3.17(c) of the Bank Disclosure Letter sets forth all material leases of the Bank and its Subsidiaries as of the date hereof.
(d) Other than (i) to properties for which the Knowledge of the Company, no Person, other than the Company Bank or any Company Subsidiaryof its Subsidiaries is landlord or sublessor or (ii) properties the Bank or its Subsidiaries own as satisfaction on a debt previously contracted, possesses, uses or occupies all or there are no Persons in possession of any portion of any Company Leased Real Property, (ii) neither of the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property owned or interest thereinleased by the Bank or its Subsidiaries other than the Bank or its Subsidiaries, and (iii) no Person other than the Bank or its Subsidiaries has the right to the Knowledge of the Company, there are no pending Proceedings use or Proceedings threatened in writing to take all or occupy for any purpose any portion of any of the Company Leased Real Property real property owned or any interest therein leased by eminent domain the Bank or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofits Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Iberiabank Corp)
Real and Personal Property. (a) Section 3.16(aReal Property.
(i) of the Company Disclosure Letter sets forth a correct and complete list of Schedule 2.12(a) lists all real property owned by the Company or any Company Subsidiary as of (the date of this Agreement. Each of "Owned Real Property") and Schedule 2.12(a) lists all real property leased by the Company and each as a tenant (the "Leased Real Property").
(ii) The Company Subsidiary has good, valid record and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Owned Real Property, free and clear of all Liensliens, other than Permitted Liens. restrictions and encumbrances, except as set forth in Schedule 2.12(a).
(iii) The Company holds a valid and each Company Subsidiary enjoy peaceful and undisturbed possession under enforceable leasehold interest in all of the Leased Real Property, free of encumbrances that could cause an early termination of the Company's leasehold interest or impair the Company's use of the leasehold estate, except as set forth in Schedule 2.12(a).
(iv) The Company has not received any notice that it is in default under any of the covenants, easements or restrictions or other encumbrances on any of the Owned Real Property or the Leased Real Property (collectively, the "Real Property").
(v) The Company has not entered into any contracts for the sale of any of the Owned Real Property or any portion thereof. No lease or other agreement affecting any of the Owned Real Property contains any right of first refusal or option to purchase such property or any portion thereof or any other rights of others that might prevent the transfer of the Owned Real Property pursuant to this Agreement.
(vi) All of the Owned Real Property has access to a public way and utility services sufficient to satisfy legal requirements and the practical needs of the Owned Real Property as currently used and improved.
(vii) All of the Owned Real Property is in good condition and repair, all fixtures and equipment used in the operation of the Owned Real Property are in good working order, and, no capital expenditures with respect to the Owned Real Property will be required in the next five (5) years.
(viii) All of the Leased Real Property is in good condition and repair, all of the Company's fixtures and equipment used in the operation of the Leased Real Property are in good working order, and the Company does not anticipate being obligated under any of the Leases for to make any Company material repairs to any of the Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leasesnext five (5) years.
(dix) Each Lease for Except as set forth in Schedule 2.12(a), no construction at any Company Leased of the Real Property is a valid and binding obligation of currently being undertaken by the Company or any is planned to be undertaken by the Company Subsidiary that is a party thereto, as applicable, and to within the Knowledge of the Company, the other parties theretonext five (5) years.
(ex) Neither the Company nor any Company Subsidiary has received any written communication fromExcept as set forth in Schedule 2.12(a), there are no actions, suits or delivered any written communication proceedings (including, but not limited to, any other party to a Lease for any Company Leased Real Property or any lender, norcondemnation actions and arbitration proceedings) pending or, to the Knowledge of the Company threatened against Company at law or in equity or before or by any federal, state, municipal or other governmental court, department, commission, board, bureau, agency or instrumentality against any of the Owned Real Property or Company's interest therein, is and there any other party alleging that the Companyare no actions, any Company Subsidiary suits or such other partyproceedings (including, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would but not reasonably be expected limited to, individually condemnation actions and arbitration proceedings) pending or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company threatened at law or in equity or before or by any federal, state, municipal or other governmental court, department, commission, board, bureau, agency or instrumentality on any of Company's direct or indirect interest in any of the Leased Real Property.
(xi) Except as set forth in Schedule 2.12(a), to the Company's Knowledge, the Owned Real Property and the Leased Real Property complies with all applicable zoning, building, environmental, health and public safety, subdivision, land use and similar laws, rules, ordinances and regulations, including, but not limited to, the Americans with Disabilities Act and the regulations issued thereunder.
(xii) No consent or approval is required from any governmental authority for the transfer of any of the Real Property pursuant to the transactions contemplated by this Agreement; no Persongovernmental, fire, life safety or other than inspection is required in connection with the transfer of any of the Real Property pursuant to the transactions contemplated by this Agreement; and no new certificates of occupancy are required to be issued in connection with the transfer of any of the Real Property pursuant to the transactions contemplated by this Agreement.
(xiii) Except as listed in Schedule 2.12(a), there are no contracts or agreements related to the current use or operation of any of the Leased Real Property by the Company or the ownership or the current use or operation of the Owned Real Property that would have a Material Adverse Effect on the use, operation or, as to the Owned Real Property, ownership thereof if terminated. True, correct and complete copies of all contracts listed on Schedule 2.12(a) have been delivered to Buyer prior to the date hereof.
(xiv) All licenses, permits and/or other approvals required for the current use or operation by the Company of any of the Leased Real Property or the ownership or the current use or operation of any of the Owned Real Property are in full force and effect.
(xv) The leases to which the Company Subsidiaryis a party that give rise to the Leased Real Property (the "Leases"), possessesas well as the term and rent obligations thereunder are listed on Schedule 2.12(a). Each of the Leases is in full force and effect according to the terms set forth therein and has not been modified, uses amended or occupies altered except as listed on Schedule 2.12(a). The information set forth on Schedule 2.12(a) with respect to each of the Leases is true and correct in all respects.
(xvi) True, correct and complete copies of the Leases and any modifications, amendments or alteration thereof have been delivered to Buyer prior to the date hereof.
(xvii) To the Company's Knowledge, all obligations of each landlord under each of the Leases have been performed to date, subject to expiration of any applicable grace, notice and curative periods.
(xviii) The Company is not in default under any Lease, and has not received any notice of default. The Company has no Knowledge of any facts or circumstances which, with the giving of notice or the passage of time or both, would constitute a default by the Company under any Lease.
(xix) All security deposits under the Leases are listed in Schedule 2.12(a).
(xx) None of the Leases require the consent of the landlord or the landlord's lender to the transfer of any of the Leased Real Property pursuant to the transactions contemplated by this Agreement.
(xxi) The Company has not assigned any of the Leases and has not sublet all or any portion of its leased premises under any Company Leased of the Leases.
(xxii) Each parcel of Owned Real Property is a separate lot for real estate tax and assessment purposes, and no other real property is included in such tax parcel. There are no Taxes (as defined below), assessments, fees, charges or similar costs or expenses imposed by any governmental authority, association or other entity having jurisdiction over the Real Property (collectively, the "Real Estate Impositions") against the Company's interest in any Real Property or portion thereof which are delinquent. There is no pending or threatened increase or special assessment or reassessment of any Real Estate Impositions against the Company's interest in any Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofexcept as set forth on Schedule 2.12(a).
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Real and Personal Property. (a) Section 3.16(a) of the Company Disclosure Letter Schedule sets forth a correct the address and complete list description of all real property owned by the Company or any Company Subsidiary of its Subsidiaries (together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, “Owned Real Property”). With respect to the Owned Real Property, except as of the date of this Agreement. Each set forth on Section 3.16(a) of the Company and each Disclosure Schedule, (i) the Company Subsidiary or one or more of its Subsidiaries (as the case may be) has good, valid and marketable fee simple title toto such Owned Real Property, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens Liens, except for Permitted Liens, (ii) there are no outstanding options, rights of first offer or rights of first refusal or other rights to purchase such Owned Real Property or any portion thereof or interests therein, and (iii) neither the Company nor any of its Subsidiaries is a party to any agreement or option to purchase, acquire, dispose or sell any interest in real property.
(b) Section 3.16(b) of the Company Disclosure Letter Schedule sets forth a correct true and complete list as of each leaseMay 6, sublease, license or similar use, co-working service 2021 of all leases and occupancy Contract (each, a “Lease”), in accordance with subleases pursuant to which the Company or any Company Subsidiary (other than SpinCo and of its Subsidiaries) leasesSubsidiaries is a party as of May 6, subleases or otherwise uses or occupies any 2021 with respect to real property leased or obtains co-working services from subleased by the Company or any of its Subsidiaries requiring aggregate annual payments, to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as on behalf of the date of this Agreement. The Company has provided Parent a correct and complete copy of each landlord under such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiarylease or sublease, as applicable, have valid leasehold or sublease interests in all of more than $2 million (“Real Property Leases” and together with the Owned Real Property, “Real Property”). Except as would not constitute a Company Material Adverse Effect, the Company Leased Real Propertyor one of its Subsidiaries has valid and enforceable leasehold estates in or other rights to use all real property leased, subleased, licensed or otherwise occupied (whether as tenant, subtenant or pursuant to other occupancy arrangements) by the Company or any of its Subsidiaries, free and clear of all Liens, other than except for Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(dc) Each Lease for any Except as would not constitute a Company Leased Real Property is a Material Adverse Effect, (i) the Company and its Subsidiaries have good and valid title to, or valid and binding obligation of the Company enforceable rights to use under existing franchises, easements or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication fromlicenses of, or delivered any written communication tovalid and enforceable leasehold interests in, any other party all of their material tangible personal properties and assets necessary to a Lease carry on their businesses as currently conducted, free and clear of all Liens, except for any Company Leased Real Property Permitted Liens, (ii) there are no condemnation or any lender, norrezoning proceedings pending or, to the Knowledge of the Company, is there threatened with respect to any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than Real Property and (iii) none of the Company or any Company Subsidiary, possesses, uses of its Subsidiaries has received or occupies all or any portion delivered written notice of any Company Leased violation of any easement or reciprocal easement, covenants or restrictions of record affecting any Real Property, .
(iid) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iiiExcept as set forth on Section 3.16(d) to the Knowledge of the CompanySeller Disclosure Schedule, as of May 6, 2021, there are has been no pending Proceedings or Proceedings threatened in writing to take all or base rent deferred under any portion of the Company Leased Real Property Lease due to COVID-19 that is currently unpaid or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofoutstanding.
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Real and Personal Property. (a) Section 3.16(aNo Group Company owns (or has ever owned) any right, title or interest in a parcel of the Company Disclosure Letter sets forth a correct and complete list of all real property owned other than the leasehold estates created by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted LiensLeases.
(b) Section 3.16(b3.18(b) of the Company Disclosure Letter Schedule sets forth a complete and correct address for each Leased Real Property and complete list a description of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which Lease for the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property, including, for each Lease, the identity of the applicable Group Company that is the lessee or sublessee, as applicable, thereunder (referred to in this Section 3.18 as a “Lessee”) as and the identity of the date of this Agreementlandlord, current monthly base rent and the expiration date. The Company Partnership has provided made available to Parent a complete and correct and complete copy copies of each such LeaseLease set forth on Section 3.18(b) of the Disclosure Schedule, and all none of such Leases has been modified, amended or extended in any respect, except to the extent that such modifications, amendments theretoor extensions are disclosed in the copies made available to Parent. The Leased Real Property is sufficient for the operation of the business conducted thereon.
(c) The Company and each Company Subsidiary, Except as applicable, have valid leasehold or sublease interests in all set forth on Section 3.18(c) of the Company Disclosure Schedule, with respect to each Lease for the Leased Real Property:
(i) each such Lease is valid and binding on the applicable Group Company and is in full force and effect, subject to the due authorization of the other party thereto, and has been authorized and/or consented to by any Person or Governmental Entity whose authorization or consent may be required;
(ii) the applicable Group Company’s possession and quiet enjoyment of the Leased Real Property under the applicable Lease has not been disturbed and, to the Partnership’s Knowledge, there are no disputes with respect to such Lease;
(iii) the applicable Group Company has not assigned, subleased, sublicensed, licensed or otherwise granted any Person the right to use or occupy the Leased Real Property under the applicable Lease or any portion thereon;
(iv) no Lessee has collaterally assigned or granted any security interest in any such Lease to which it is a party;
(v) the Lessee and, to the Partnership’s Knowledge, the landlords or other parties leasing the Leased Real Property under the applicable Lease to such Lessee are not in violation of or default in any material respect of any of the Leases for such Leased Real Property, and no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such Lease;
(vi) no Group Company owes any brokerage commissions or finder’s fees with respect to any Lease;
(vii) the other party to each Lease is not an Affiliate of, and otherwise does not have any economic interest in, any Group Company;
(viii) to the Partnership’s Knowledge, the Leased Real Property is fully licensed, permitted and authorized for the operation of the business conducted thereon by the Group Companies under all Applicable Laws relating to the conduct of such business thereon (including, without limitation, all zoning restrictions, land use requirements and private use restrictions); and
(ix) to the Partnership’s Knowledge, (i) no work has been performed on any parcel of Leased Real Property at the request of any Group Company within one hundred twenty (120) days of the date hereof for which a mechanic’s lien could be filed; (ii) there are no mechanics’ liens affecting any parcel of Leased Real Property; and (iii) there are no outstanding capital improvements or landlord repairs in connection with any parcel of Leased Real Property.
(d) The Group Companies (prior to and after giving effect to the Pre-Closing Restructuring) have good title to, or a valid leasehold interest in, all items of tangible personal property reflected in the Latest Financial Statements as owned or leased by the Group Companies free and clear of any Liens. Immediately following the Pre-Closing Restructuring: (i) except as identified on Section 3.18(d)(i) of the Disclosure Schedule, MAG or its Subsidiaries will have good title to, or a valid leasehold interest in, all items of tangible personal property reflected in the Latest Financial Statements as owned or leased by the Group Companies, free and clear of all Liens, other than Permitted Liens. The Company any Liens and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither except as identified in Section 3.18(d)(ii) of the Company nor any Company Subsidiary is a party to any agreementDisclosure Schedule, M Attest Co will have good title to, or has any outstanding right a valid leasehold interest in, all items of first offertangible personal property reflected in the Latest Financial Statements that is used in or necessary for the Attest Business, right of first refusal or option with respect to the purchase or sale free and clear of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofLiens.
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Samples: Merger Agreement (CBIZ, Inc.)
Real and Personal Property. (a) None of the Company nor any Company Subsidiary owns any real property in fee simple. Section 3.16(a3.14(a) of the Company Disclosure Letter Schedule sets forth a correct true and complete list of all real property leased to the Company or any Company Subsidiary (the “Leased Real Property”), and there is no other real property owned, leased or occupied by the Company or any of the Company Subsidiaries.
(b) A complete and accurate copy of each lease under which the Company or any Company Subsidiary is lessee of any of the Leased Real Property, including amendments thereto, has been made available in the Data Room to Parent and all such leases are listed on Section 3.14(b) of the Company Disclosure Schedule. To the Knowledge of the Company, the Company or any applicable Company Subsidiary possesses and quietly enjoys all of the Leased Real Property.
(c) With respect to the Leased Real Property, the Company or a Company Subsidiary has an adequate leasehold, license or similar interest in each of the Leased Real Properties free and clear of all Encumbrances, except Permitted Encumbrances or as listed on Section 3.14 (c) of the Company Disclosure Schedule.
(d) Except as disclosed in Section 3.14(d) of the Company Disclosure Schedule, the Company is not a party to any lease, assignment or similar arrangement under which the Company is a lessor, assignor or otherwise makes available for use by any third party any portion of its owned real property or Leased Real Property.
(e) Section 3.14(e) of the Company Disclosure Schedule sets forth a complete list as of the date specified thereon of (i) all equipment, machinery, motor vehicles, plants and other tangible Personal property owned by the Company or any Company Subsidiary, and (ii) all equipment, machinery, motor vehicles, plants and other tangible personal property leased by the Company or any Company Subsidiary as involving the payment of the date of this Agreementmore than $100,000 per year. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free good and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Propertymarketable title, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
Encumbrances (d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: except (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Propertyliens for current Taxes not yet due, (ii) neither Encumbrances incurred in the Company nor any Company Subsidiary is a party to any agreement, ordinary course of business consistent with past practice which individually and in the aggregate are not material in nature or has any outstanding right amount and do not impair the use of first offer, right such Personal property in the operation of first refusal or option with respect to the purchase or sale of any real property or interest thereinCompany’s business, and (iii) such Encumbrances as required pursuant to the Knowledge of Comerica Loan (such Encumbrances in clauses (i) through (iii) being referred to as “Permitted Encumbrances”)), to the personal property reflected on the Company’s Financial Statements for the fiscal year ended December 31, 2003 as being owned by the Company, there are no pending Proceedings other than properties and assets that have been sold or Proceedings threatened otherwise disposed of either (i) in writing the ordinary course of business since December 31, 2003 and prior to take the date hereof or (ii) after the date hereof consistent with Section 5.1. The Company and the Company Subsidiaries own, or hold under valid leases or licenses, all or any portion personal property, plants, machinery and equipment reasonably necessary for the conduct of the business of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or and the jurisdictional equivalent thereof) or any sale or disposition Company Subsidiaries as it is being conducted on the date hereof. The Company’s and the Company Subsidiaries’ equipment has been reasonably maintained and is in lieu thereofgood condition and repair, reasonable wear and tear excepted.
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Real and Personal Property. (a) The Company or a Subsidiary possesses, free and clear of all Liens, except for Permitted Liens, good, valid and marketable title to real property and interests in real property (the “Owned Real Property”) or good and valid leasehold interests in the leased real property (the “Leased Real Property”) used or held for use by it in the conduct of its respective business, in each case as necessary to permit the Company and the Subsidiaries to conduct their respective businesses as currently conducted in all material respects. Section 3.16(a) 3.17 of the Company Disclosure Letter sets forth Schedule contains a correct true and complete list of all Owned Real Property and Leased Real Property.
(b) Each of the Company and its Subsidiaries has complied in all material respects with the terms of all material leases and subleases applicable to the Leased Real Property to which it is a party or under which it is in occupancy, and all such leases and subleases are valid, legally binding, enforceable and in full force and effect. No notice of any material default under any material such lease has been delivered to the Company or any Subsidiary and none of the Company or any of its Subsidiaries is in breach or violation of or default under such lease or sublease, and no event has occurred which, with notice, lapse of time or both, would constitute a breach, violation or default by any of the Company or its Subsidiaries or permit termination, modification or acceleration or repudiation by any third party thereunder, or prevent, materially delay or materially impair the consummation of the transactions contemplated by this Agreement except in each case, for such invalidity, failure to be binding, unenforceability, ineffectiveness, breaches, violations, defaults, charges, terminations, modifications, accelerations or repudiations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Except as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each of the Company and its Subsidiaries has fulfilled and performed all of its obligations with respect to any material authorizations, permits, easements, prescriptive rights and rights of way, whether or not of record, pertaining to real property owned (the “Real Property Easements”) necessary to conduct their businesses as conducted on the date hereof, and to the Company’s knowledge, no event has occurred that would allow, with or without notice or lapse of time or both, revocation or termination thereof or would result in any impairment of the rights of the Company or any Subsidiary with respect to any Real Property Easement, except for such revocations, terminations and impairments as would not affect the commercial use of the applicable property for the purposes for which it is being used by the Company or any Company a Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication fromnotice of any pending, threatened or contemplated condemnation, eminent domain, litigation, administrative action or similar proceedings by any Governmental Authority involving the taking of any real property or any portion thereof or interest therein, or delivered any written communication to, sale or other disposition of any other party real property to a Lease for any Company Leased Real Property which it holds title or any lenderportion thereof in lieu of condemnation, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as have not had and would not reasonably be expected toto have, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, . There are no Person, other than the Company outstanding options or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right rights of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Owned Real Property or any interest therein therein.
(e) The Company and its Subsidiaries, individually or together, own, lease or have the right to use all of their personal property used or held for use by eminent domain it in the conduct of their respective businesses (the “Personal Property”), as necessary to permit the Company and its Subsidiaries to conduct their respective businesses as currently conducted in all material respects. The Company and each of its Subsidiaries has title to, or any condemnation proceeding (in the case of leased or subleased Personal Property, valid and subsisting leasehold interests in, all of the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofPersonal Property free and clear of Liens, other than Permitted Liens.
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Real and Personal Property. (ai) Section 3.16(aSet forth on Schedule 4.2(t)(i) of the Company Capstone Disclosure Letter sets forth Memorandum is a correct true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company Bancshares or Capstone or any Company Subsidiary of their Subsidiaries, including without limitation property carried on the books of Capstone as “Other Real Estate Owned” (the “Owned Real Property”), and all real property leased by Bancshares or Capstone or any of their Subsidiaries (the “Leased Real Property” and together with the Owned Real Property, collectively, the “Capstone Properties”). Except for the Capstone Properties, as of the date of this Agreement, neither Bancshares nor Capstone nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property. Each Bancshares and Capstone and their Subsidiaries have good and marketable title to all of the Company and each Company Subsidiary has good, valid and marketable fee title to, Owned Real Property (including any property acquired in a judicial foreclosure proceeding or valid leasehold by way of a deed in lieu of foreclosure or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments thattransfer), in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are each case free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct any and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, except Permitted Exceptions. There are no unpaid bills or claims for work performed on or at the Capstone Properties other than Permitted Liensbills for work that has been performed but which are not yet due and payable. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of Each lease pursuant to which Bancshares or Capstone or their Subsidiaries lease the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party theretovalid, binding, enforceable (except as applicableenforceability may be limited by applicable bankruptcy, insolvency, moratorium, and to the Knowledge similar Laws affecting creditors’ rights and remedies generally or general principles of the Companyequity, the other parties thereto.
(e) Neither the Company whether applied in a court of law or a court of equity), and in full force and effect, and neither Bancshares nor Capstone nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lenderof their Subsidiaries, nor, to the Knowledge of the CompanyCapstone Parties, is there any other party alleging that the Company, to any Company Subsidiary or such other party, as the case may belease, is in material breach or violation of or default under or in violation of any provision of any such Leaselease. The Capstone 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. Each of the Capstone Properties that is used or held for use by the Capstone Parties in connection with the current business or operations of the Capstone Parties and their Subsidiaries (the “Capstone Business Properties”) 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 Capstone Parties to be adequate for the current business of the Capstone Parties and their Subsidiaries. To the Knowledge of the Capstone Parties, none of the buildings, structures, or other improvements located on any of the Capstone Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way and none of the buildings, structures, or other improvements located on any parcel adjoining the Capstone Business Properties encroaches upon or over any portion of the Capstone Business Properties.
(fii) Except Subject to the terms of the applicable lease, the Capstone Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property. The Capstone Properties are not subject to any other legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes with the Capstone Parties’ or their Subsidiaries’ use of the Capstone Properties. There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Capstone Properties other than the Capstone Parties and their Subsidiaries. There are no easements of any kind on, in respect of, or affecting the Capstone Properties that materially and adversely affect the rights of the Capstone Parties and their Subsidiaries to use the Capstone Properties for the conduct of their business.
(iii) To the Knowledge of the Capstone Parties, none of the Capstone Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Capstone Parties have no Knowledge that any of the Capstone Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Capstone Properties which, if as a result of which a special, general, or other assessment were imposed, would not reasonably be expected tomaterially increase the cost of using and operating the Capstone Properties as currently used and operated by the Capstone Parties and their Subsidiaries.
(iv) None of the Capstone Properties are located in any wetland area as designated by the United States Army Corps of Engineers, individually the United States Environmental Protection Agency, or any applicable state or local agency. The Capstone Properties are appropriately zoned for each of the purposes for which they are being used by the Capstone Parties and their Subsidiaries.
(v) Neither Bancshares nor Capstone, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by Bancshares or Capstone or any of their Subsidiaries in the aggregateoperation of their business as presently conducted; there is no pending or, have a Company Material Adverse Effect: (i) to the Knowledge of the CompanyCapstone Parties, no Personthreatened governmental action that could prohibit or materially interfere with such access; and, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the CompanyCapstone Parties, there no fact or condition exists which, with the passage of time or the giving of notice, or both, may result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Capstone Properties are no pending Proceedings adequate in all material respects for the Capstone Parties’ and their Subsidiaries’ existing use and operation of the Capstone Properties.
(vi) Bancshares and Capstone and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens other than Permitted Exceptions. Each lease pursuant to which Bancshares or Proceedings threatened in writing to take all Capstone, or any portion of their Subsidiaries, leases personal property is valid, binding, enforceable (except as enforceability may be limited by applicable bankruptcy, insolvency, moratorium, and similar Laws affecting creditors’ rights and remedies generally or general principles of equity, whether applied in a court of law or a court of equity), and in full force and effect, and neither Bancshares nor Capstone, nor any of their Subsidiaries, nor, to the Knowledge of the Company Leased Real Property Capstone Parties, any other party to any such lease, is in default under or in breach or violation of any interest therein provision of any such lease. The personal property owned or leased by eminent domain or any condemnation proceeding (or Bancshares and Capstone and their Subsidiaries is in good condition, normal wear and tear excepted, and is sufficient for the jurisdictional equivalent thereof) or any sale or disposition carrying on of the business of Bancshares and Capstone and their Subsidiaries in lieu thereofthe ordinary course consistent with past practice.
Appears in 1 contract
Real and Personal Property. (a) Section 3.16(a) of the Company Disclosure Letter sets forth a correct and complete list of all real property owned by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Subsidiary owns any real property.
(b) Schedule 3.10(b) sets forth a list of all real property leased by the Company Subsidiary has received or any written communication from, or delivered any written communication to, any other party of its Subsidiaries and sets forth the municipal address thereof (the “Leased Real Property”). All leases (including subleases) relating to a Lease for any Company Leased Real Property or any lenderare identified on Schedule 3.10(b) (each a “Lease” and collectively, nor, the “Leases”) and the Company has made available to the Knowledge Buyer a true and complete copy of each Lease (including any amendments and renewals) for each parcel of Leased Real Property. None of the CompanyCompany nor its Subsidiary is a party to, or is there under any other party alleging that the Companyagreement to become a party, nor has any right or interest in, any lease with respect to real property other than the Leased Real Property and the Leases identified on Schedule 3.10(b). Each Leased Real Property is adequate and suitable for the purpose for which it is presently being used, and the Company Subsidiary or such other partyits Subsidiaries, as the case may be, has the adequate rights of ingress and egress into each Leased Real Property for the operation of the Business in the ordinary course of business. With respect to each Lease:
(i) the Company or a Subsidiary of the Company, as applicable, have valid and enforceable leasehold interests to the leasehold estate in the Leased Real Property granted to the Company or its Subsidiary, as applicable, pursuant to each pertinent Lease, except as such enforceability may be limited by General Enforceability Exceptions;
(ii) each Lease has been duly authorized and executed by the Company or its Subsidiary, as applicable, is in good standing, is in full force and effect without amendment, except as disclosed in Schedule 3.10(b), and is legal, valid and binding on the Company or applicable Subsidiary, except as such enforceability may be limited by General Enforceability Exceptions;
(iii) none of the Company, any Subsidiary or, to the Company’s knowledge, any other party to any of the Leases is in material breach or violation material default of or any provision under any of said Leases (including any default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) relating to the Knowledge payment of base rent or additional rent), nor to the Company’s knowledge has any event occurred which, no Personwith notice or the passage of time, other than or both, would give rise to such a material breach or material default by the Company or any Company SubsidiarySubsidiary or, possessesto the Company’s knowledge, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a other party to any agreementof the Leases, as applicable;
(iv) the possession and quiet enjoyment by the Company or applicable Subsidiary of the Leased Real Property under such Leases has any outstanding right not been disturbed and there are no disputes between the Company and the landlord of first offer, right of first refusal or option the Leased Real Property with respect to the purchase or sale of any real property or interest therein, and Lease; and
(iiiv) to the Knowledge of the Companyexcept as disclosed in Schedule 3.10(b), there are no pending Proceedings restrictions on assignment or Proceedings threatened in writing to take all or any portion change of control of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding its Subsidiary in the Leases.
(or the jurisdictional equivalent thereofc) Except as set forth on Schedule 3.10(c) or as specifically disclosed in the Latest Balance Sheet, and except with respect to leased personal property, the Company and each of its Subsidiaries have good title to all of their tangible personal property and assets shown on the Latest Balance Sheet or acquired after the date of the Latest Balance Sheet, free and clear of any sale or disposition in lieu thereofLiens, except for Permitted Liens.
Appears in 1 contract
Samples: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Real and Personal Property. (a) Section 3.16(aCompany neither owns nor has ever owned, or is a party to or bound by any Contract to acquire, any real estate.
(b) Part 3.6(b) of the Company Disclosure Letter sets forth a correct and complete list of lists all real property owned estate leased by Company as a lessee, sub-lessee, or assignee (the Company or any Company Subsidiary as “Leased Real Property”), including a description of the date of this Agreementpremises leased. Each All Leased Real Property is leased pursuant to valid written leases listed in Part 3.17(a) of the Disclosure Letter. Such leases contain the entire agreement between the landlord of each of the leased premises and Company, and there is no other Contract between the landlord and Company and each affecting such Leased Real Property. Company Subsidiary has good, valid and marketable fee title to, does not relet any Leased Real Property as a lessor or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, sub-lessor.
(c) Company’s interest in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are Leased Real Property is owned free and clear of all Liens except for Encumbrances, variances, or limitations of any nature, other than Permitted Liens.
(b) Section 3.16(bEncumbrances and as set forth in Part 3.6(c) of the Disclosure Letter. All buildings, plants, and structures owned by Company Disclosure Letter sets forth a correct lie wholly within the boundaries of the Leased Real Property and complete list of each leasedo not encroach upon the property of, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real conflict with the property or obtains co-working services from or to rights of, any other Person (whether as a tenant Person. There are no buildings, structures, fixtures, or subtenant or in accordance with other occupancy or service arrangements) (improvements primarily situated on adjoining property that encroach on any part of the “Company Leased Real Property”) as . Certificates of occupancy are in full force and effect for the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, and Company’s use thereof does not violate any applicable zoning, subdivision, land use, or other Legal Requirement. No Third Party has a right to acquire any interest in Company’s interests in the Leased Real Property.
(d) Company owns all tangible personal property reflected as owned in the Interim Balance Sheet free and clear of all LiensEncumbrances, other than Permitted Liens. The Company Encumbrances and each Company Subsidiary enjoy peaceful and undisturbed possession under all as set forth in Part 3.6(d) of the Leases for any Disclosure Letter. All the tangible personal property purchased or otherwise acquired by Company Leased Real Property in all material respects, since the Interim Balance Sheet Date (other than inventory acquired and are using such Company Leased Real Property for sold since the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or Interim Balance Sheet Date in the aggregate, have a Ordinary Course of Business) is owned by Company Material Adverse Effect: (i) to the Knowledge free and clear of the Company, no Personall Encumbrances, other than Permitted Encumbrances and as set forth in Part 3.6(d) of the Disclosure Letter. A copy of the fixed asset register of Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party has been delivered to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest thereinBuyer, and (iii) to the Knowledge it contains a complete and correct list of Company’s fixed assets as of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofdate specified.
Appears in 1 contract
Real and Personal Property. (a) Section 3.16(a) of the Owned Real Property. No Parent Group Company Disclosure Letter sets forth a correct and complete list of all owns any real property owned by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liensproperty.
(b) Section 3.16(bLeased Real Property.
(i) of the Company Disclosure Letter Schedule 5.17(b)(i) sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract Parent Real Property Lease in effect as of the Original Agreement Date pursuant to which the current annual rental payments exceed $1,500,000 (each, a “Material Parent Real Property Lease”), in accordance with which ; the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or leased by the Parent Group Companies pursuant to any other Person (whether the Material Parent Real Property Leases is hereinafter referred to as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Parent Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto).
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(fii) Except as would not reasonably be expected toto be material to the Parent Group Companies taken as a whole, individually each Material Parent Real Property Lease is valid and binding on the Parent Group Company party thereto, enforceable in accordance with its terms (assuming the due authorization and execution of such Material Parent Real Property Lease by the other party(ies) thereto, and subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
(iii) Except as would not reasonably be expected to be material to the Parent Group Companies taken as a whole, neither any Parent Group Company, nor, to Parent’s knowledge, any third party to a Material Parent Real Property Lease is in default under or in breach of any Material Parent Real Property Lease in any material respect.
(iv) No Parent Group Company has entered into any material sublease granting to any Person other than a Parent Group Company the aggregate, have a Company Material Adverse Effect: (i) right to the Knowledge use or occupy any material portion of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Parent Leased Real Property, .
(iiv) neither the No Parent Group Company nor any Company Subsidiary is a party has granted to any agreement, Person other than a Parent Group Company any option or has any outstanding right of first offer, right of first refusal to purchase or option acquire any material portion of the Parent Leased Real Property.
(vi) Except as would not reasonably be expected to be material to the Parent Group Companies taken as a whole, the use of the Parent Leased Real Property does not violate any applicable Law, covenant, condition, restriction, easement, license, permit or agreement in effect with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company such Parent Leased Real Property Property. There is no condemnation or any interest therein by eminent domain or any condemnation proceeding (or affecting the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofParent Leased Real Property.
Appears in 1 contract
Samples: Agreement and Plan of Amalgamation
Real and Personal Property. (a) Section 3.16(a) of the Company Disclosure Letter Schedule sets forth a correct true and complete list as of the date hereof of (i) all real property properties (by name and location) owned by the Company or any Company Subsidiary of its subsidiaries as of the date of this Agreement. Each of hereof (the Company “Owned Real Property”) and each Company Subsidiary has good(ii) all leases, valid and marketable fee title tosubleases, licenses or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability agreement (“Real Property Leases”) pursuant to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company its Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) is a party as of the Company Disclosure Letter sets forth a correct and complete list of each leasedate hereof with respect to real property leased, subleaselicensed, license occupied or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which used by the Company or any Company Subsidiary of its Subsidiaries (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The collectively with the Owned Real Property, the “Real Property”). Except as would not constitute a Company and each Company SubsidiaryMaterial Adverse Effect, as applicable, have valid leasehold or sublease interests in all of the Company or one of its Subsidiaries owns and has good, marketable and valid title to all Owned Real Property and holds a has valid and enforceable leasehold estates in or other rights to use all Leased Real PropertyProperty (whether as tenant, subtenant or pursuant to other occupancy arrangements) by the Company or any of its Subsidiaries, free and clear of all Liens, other than except for Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation None of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, norits Subsidiaries or, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may bePerson, is in material breach or violation of of, or default under under, any Real Property Lease and no event has occurred and no circumstance exists which, if not remedied, would result in such Lease.
a breach, violation or default (f) Except with or without notice or lapse of time, or both). All buildings, structures, improvements, and fixtures located on the Real Property have been maintained in accordance with normal industry practice, are in good operating condition and repair without material structural or mechanical defect, and are suitable for the purposes for which they are currently used, except as would not reasonably be expected to, individually or in the aggregate, to have a Company Material Adverse Effect: (i) . There are no parties other than the Company or its Subsidiaries in possession of the Real Property. There are no pending or, to the Knowledge of the Company, no Person, other than the Company or its Subsidiaries, any Company Subsidiarythreatened condemnation, possesses, uses eminent domain or occupies all or administrative actions affecting any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu portion thereof.
(b) Except as would not constitute a Company Material Adverse Effect, the Company and its Subsidiaries have good and valid title to, or valid and enforceable rights to use under existing franchises, easements or licenses of, or valid and enforceable leasehold interests in, all of their material tangible personal properties and assets necessary to carry on their businesses as currently conducted, free and clear of all Liens, except for Permitted Liens.
Appears in 1 contract
Samples: Merger Agreement (ORBCOMM Inc.)
Real and Personal Property. Attached hereto as Schedule 6.16 is an accurate list, including substantially complete descriptions as of the Interim Balance Sheet Date, of all the real and personal property (awhich in the case of personal property had an original cost in excess of $25,000) Section 3.16(aowned or leased by the Company (including its Company Subsidiaries) where the Company is a lessee or sublessee, including true and correct copies of leases for equipment and properties on which are situated buildings, warehouses and other structures used in the operation of the business of the Company (including its Company Subsidiaries) and including an indication as to which assets were formerly owned by any Stockholder or affiliate (which term, as used herein, shall have the meaning ascribed thereto in Rule 144(a)(1) promulgated under the Securities Act of 1933, as amended (the "Securities Act")) of the Company. Except as set forth on Schedule 6.16, all of the Company's buildings, leasehold improvements, structures, facilities, equipment and other material items of tangible property and assets are in good operating condition and repair, subject to normal wear and maintenance, are usable in the regular and ordinary course of business and conform to all applicable laws, ordinances, codes, rules and regulations, and Authorizations relating to their construction, use and operation. All leases set forth on Schedule 6.16 have been duly authorized, executed and delivered and constitute the legal, valid and binding obligations of the Company Disclosure Letter sets forth a correct (or its Company Subsidiaries) and, to the knowledge of the Stockholders, no other party to any such lease is in default thereunder and complete list such leases constitute the legal, valid and binding obligations of all real property such other parties. All fixed assets used by the Company (including its Company Subsidiaries) in the operation of its business are either owned by the Company (or any its Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liensleased under an agreement set forth on Schedule 6.16. The Company and the Stockholders have heretofore delivered to UniCapital copies of all title reports and title insurance policies received or held by each Company Subsidiary enjoy peaceful (including its Company Subsidiaries). The Company and undisturbed possession under the Stockholders have indicated on Schedule 6.16 a summary description of all plans or projects involving the opening of the Leases for any Company Leased Real Property in all material respectsnew operations, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion expansion of any Company Leased Real Property, (ii) neither existing operations or the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale acquisition of any real property or interest therein, and (iii) existing business to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion which management of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or its Company Subsidiaries) has devoted any significant effort or expenditure in the jurisdictional equivalent thereoftwo-year period prior to the date of this Agreement which, if pursued by the Company (or its Company Subsidiaries) would require additional expenditures of significant efforts or any sale or disposition in lieu thereofcapital.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (Unicapital Corp)
Real and Personal Property. Attached hereto as Schedule 4.13 is an accurate list, including substantially complete descriptions as of the Balance Sheet Date, of all the real and personal property (awhich in the case of personal property had an original cost in excess of $50,000) Section 3.16(aowned or leased by the Company or its Subsidiaries where the Company or its Subsidiaries are lessee or sublessee, including true and correct copies of leases for equipment and properties on which are situated buildings, warehouses and other structures used in the operation of the businesses of the Company and its Subsidiaries and including an indication as to which assets were formerly owned by any Stockholder or affiliate (which term, as used herein, shall have the meaning ascribed thereto in Rule 144(a)(1) promulgated under the Securities Act of 1933, as amended (the "Securities Act")) of the Company Disclosure Letter sets or its Subsidiaries. Except as set forth a correct on Schedule 4.13, all of the buildings, leasehold improvements, structures, facilities, equipment and complete list other material items of tangible property and assets owned or leased by the Company and its Subsidiaries are in good operating condition and repair, subject to normal wear and maintenance, are usable in the regular and ordinary course of business and conform to all real property applicable Laws and Authorizations relating to their construction, use and operation. All leases set forth on Schedule 4.13 have been duly authorized, executed and delivered and constitute the legal, valid and binding obligations of the Company or its Subsidiaries and, to the knowledge of the Company or its Subsidiaries, no other Person party to any such lease is in default thereunder and such leases constitute the legal, valid and binding obligations of such other parties. All fixed assets used by the Company and its Subsidiaries in the operation of their respective businesses are either owned by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, its Subsidiaries or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets leased under an agreement set forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreementon Schedule 4.13. The Company has provided Parent indicated on Schedule 4.13 a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear summary description of all Liensplans or projects involving the opening of new operations, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion expansion of any Company Leased Real Property, (ii) neither existing operations or the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale acquisition of any real property or interest therein, and (iii) existing business to the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion which management of the Company Leased Real Property and its Subsidiaries have devoted any significant effort or any interest therein expenditure in the one-year period prior to the date of this Agreement which, if pursued by eminent domain the Company and its Subsidiaries would require additional expenditures of significant efforts or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofcapital.
Appears in 1 contract
Samples: Merger Agreement (Verticalnet Inc)
Real and Personal Property. (a) Section 3.16(a) of the Company Disclosure Letter Schedule sets forth a correct the address and complete list description of all real property owned by the Company or any Company Subsidiary of its Subsidiaries (together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, “Owned Real Property”). With respect to the Owned Real Property, except as of the date of this Agreement. Each set forth on Section 3.16(a) of the Company and each Disclosure Schedule, (i) the Company Subsidiary or one or more of its Subsidiaries (as the case may be) has good, valid and marketable fee simple title toto such Owned Real Property, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens Liens, except for Permitted Liens, (ii) there are no outstanding options, rights of first offer or rights of first refusal or other rights to purchase such Owned Real Property or any portion thereof or interests therein, and (iii) neither the Company nor any of its Subsidiaries is a party to any agreement or option to purchase, acquire, dispose or sell any interest in real property.
(b) Section 3.16(b) of the Company Disclosure Letter Schedule sets forth a correct true and complete list as of each lease, sublease, license or similar use, co-working service the date hereof of all leases and occupancy Contract (each, a “Lease”), in accordance with subleases pursuant to which the Company or any Company Subsidiary (other than SpinCo and of its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as Subsidiaries is a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) party as of the date hereof with respect to real property leased or subleased by the Company or any of this Agreement. The Company has provided Parent a correct and complete copy its Subsidiaries requiring aggregate annual payments, to or on behalf of each the landlord under such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiarylease or sublease, as applicable, have valid leasehold or sublease interests in all of more than $2 million (“Real Property Leases” and together with the Owned Real Property, “Real Property”). Except as would not constitute a Company Material Adverse Effect, the Company Leased Real Propertyor one of its Subsidiaries has valid and enforceable leasehold estates in or other rights to use all real property leased, subleased, licensed or otherwise occupied (whether as tenant, subtenant or pursuant to other occupancy arrangements) by the Company or any of its Subsidiaries, free and clear of all Liens, other than except for Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(dc) Each Lease for any Except as would not constitute a Company Leased Real Property is a Material Adverse Effect, (i) the Company and its Subsidiaries have good and valid title to, or valid and binding obligation of the Company enforceable rights to use under existing franchises, easements or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication fromlicenses of, or delivered any written communication tovalid and enforceable leasehold interests in, any other party all of their material tangible personal properties and assets necessary to a Lease carry on their businesses as currently conducted, free and clear of all Liens, except for any Company Leased Real Property Permitted Liens, (ii) there are no condemnation or any lender, norrezoning proceedings pending or, to the Knowledge of the Company, is there threatened with respect to any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than Real Property and (iii) none of the Company or any Company Subsidiary, possesses, uses of its Subsidiaries has received or occupies all or any portion delivered written notice of any Company Leased violation of any easement or reciprocal easement, covenants or restrictions of record affecting any Real Property, .
(iid) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iiiExcept as set forth on Section 3.16(d) to the Knowledge of the CompanySeller Disclosure Schedule, as of the date hereof, there are has been no pending Proceedings or Proceedings threatened in writing to take all or base rent deferred under any portion of the Company Leased Real Property Lease due to COVID-19 that is currently unpaid or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofoutstanding.
Appears in 1 contract
Real and Personal Property. (a) Section 3.16(aOwned Real Property. Schedule 4.17(a) of the Company Disclosure Letter Schedules sets forth the address of each Owned Real Property. With respect to each Owned Real Property: (i) the Company or Subsidiary (as the case may be) has good and marketable fee simple title to such Owned Real Property, which shall be free and clear of all Liens as of the Closing Date, except Permitted Liens; (ii) except as set forth in Schedule 4.17(a) of the Company Disclosure Schedules, neither the Company nor any Subsidiary has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; (iii) other than the right of Parent and Merger Sub pursuant to this Agreement, there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein; (iv) neither the Company nor any Subsidiary is a party to any agreement or option to purchase any real property or interest therein relating to its business; (v) there is no pending or, to the Knowledge of the Company, threatened condemnation proceeding affecting the Owned Real Property or any portion thereof; and (vi) the Company has made available to Parent or Merger Sub copies of each deed for each parcel of Owned Real Property and all title insurance materials (including exception documents), surveys, appraisals and similar materials relating to the Owned Real Property, in each case to the extent in the Company’s possession or control.
(b) Leased Real Property. Schedule 4.17(b) of the Company Disclosure Schedules sets forth a correct true and complete list of all leases (each a “Real Property Lease”) of real property owned by (such real property, the “Leased Real Property”) pursuant to which the Company or any Company Subsidiary its Subsidiaries are a tenant as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business Except as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(bset forth on Schedule 4.17(b) of the Company Disclosure Letter sets forth a correct and complete list of each leaseSchedules, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided Parent a correct and complete copy of Agreement (i) each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of the Company Leased Real Property, free and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of on the Company or any Company Subsidiary that is a its Subsidiaries party thereto, as applicable, in full force and effect and enforceable in accordance with its terms (subject to the Knowledge of the CompanyBankruptcy and Equity Exception) and has not been assigned, the other parties thereto.
modified, supplemented or amended; (eii) Neither neither the Company nor any Company Subsidiary has received any written communication fromits Subsidiaries, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, norand, to the Knowledge of the Company, is there any none of the other party alleging that the Companyparties thereto, any Company Subsidiary or such other party, as the case may be, is are in material breach or violation of or default under such Real Property Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregateand, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Personcircumstances or state of facts presently exists which, other than with the Company giving of notice or any Company Subsidiary, possesses, uses or occupies all or any portion passage of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreementtime, or has both, would constitute a breach or default under any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and Real Property Lease; (iii) to the Knowledge of the Company, there are no pending Proceedings written subleases, concessions or Proceedings threatened in writing other contracts granting to take all any Person other than the Company and its Subsidiaries the right to use or occupy any portion Leased Real Property; (iv) to the Knowledge of the Company Company, there is no pending or written threat of condemnation affecting the Leased Real Property or any interest therein by eminent domain portion thereof; (v) to the Knowledge of the Company, there are no outstanding options or any condemnation proceeding rights of first refusal to purchase all or a portion of such Leased Real Property; and (vi) the Company has made available to Parent or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofMerger Sub true and complete copies of each Real Property Lease.
Appears in 1 contract
Real and Personal Property. (a) Section 3.16(a22(a) of the Company Disclosure Letter sets forth a true, correct and complete list of all real property (including their street addresses) owned by the Company or any a Subsidiary or which the Company or a Subsidiary hold an ownership interest (the “Owned Real Property”). Except as of the date of this Agreement. Each set forth in Section 22(a) of the Company Disclosure Letter, the Company and each Company Subsidiary has its Subsidiaries have good, valid and marketable fee defensible title to, or valid leasehold or other equivalent use and/or occupancy interests in, to all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which Owned Real Property owned by the Company or any of the Company Subsidiaries has leasehold interestsits Subsidiaries, are free and clear of all Liens Liens, except for Permitted Liens.
(b) Section 3.16(b22(b) of the Company Disclosure Letter sets forth a true, correct and complete list of each lease, sublease, license or similar use, co-working service any and occupancy Contract (each, a “Lease”), in accordance with all premises which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”, and together with the Owned Real Property, the “Real Property”). Section (22)(21) as of the Company Disclosure Letter lists all of the Leased Real Property and sets out, in respect of each lease: (i) the municipal address and applicable unit or premises leased; (ii) the date of this Agreement. The Company has provided Parent a correct the lease; (iii) the original and complete copy current parties to the lease; (iv) the area of the space subject to each such Leaselease; (v) the remaining term and any unexpired options to extend or renew (as applicable); (vi) the rent payable thereunder; (vii) the amount of any prepaid rent (if any), and all amendments thereto(viii) the identification of any guarantee or security deposits given in respect of the lease to the extent available.
(c) The Company and each Company Subsidiaryits Subsidiaries have good, as applicablevalid and marketable title to, have and/or a valid leasehold and enforceable interest and tenure (whether leasehold, licenced or sublease interests otherwise) in all of the Company Leased Real Property, free including in and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of to the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leasesfixtures thereto.
(d) Each Lease for There are no leases, subleases, licenses, concessions or other Contracts, written or oral, granting to any Company Leased Person the right of use or occupancy of any portion of the Real Property is a valid and binding obligation except in favor of the Company or any its Subsidiaries. There are no Persons in possession of such Real Property except the Company Subsidiary that is a party thereto, as applicable, and to the Knowledge or one of the Company, the other parties theretoits Subsidiaries.
(e) Neither the The Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other partyand/or its Subsidiaries, as the case may be, enjoys exclusive, peaceful, and quiet possession of the Leased Real Property in accordance with the terms of the lease thereof, is not in material default or breach or violation of or default under such Leaselease, and no event has occurred which, after the giving of notice, with lapse of time, or both, would constitute a default or breach by the Company and/or its Subsidiaries. The Company and/or its Subsidiaries, as the case may be, has timely paid all rent and other sums due and payable under the lease(s) for the Leased Real Property.
(f) Except Each Real Property is sufficient for the purpose of the business of the Company and/or its Subsidiaries as would not reasonably be expected presently conducted at such Real Property location, and the Company and its Subsidiaries own, lease or licence all personal property as is necessary for them to conduct their business as presently conducted (collectively, the “Personal Property”), and the Company and its Subsidiaries have good and valid title to, individually or in the aggregatea valid and enforceable interest (whether a leasehold interest or otherwise) in, have a Company Material Adverse Effect: all of such Personal Property.
(ig) There are no material suits, actions or proceedings pending or, to the Knowledge Company’s Knowledge, threatened against or affecting any of the Real Property or Personal Property before any Governmental Entity.
(h) There are no pending, or to the Company’s Knowledge, no Personthreatened or contemplated condemnation, other than eminent domain or expropriation proceedings with respect to any of the Real Property, or any part thereof, and none of the Company or any Company Subsidiaryof its Subsidiaries has received any notice, possessesoral or written, uses of the intention of any Governmental Entity or occupies all other Person to take or use any Real Property, or any part thereof.
(i) No Person has any right of first refusal, undertaking or commitment or any right or privilege capable of becoming such, to purchase any of the Real Property (or any portion thereof or interest therein) or any of any Company Leased Real Property, (ii) neither the material assets owned or leased or otherwise held by the Company nor any Company Subsidiary is a party to any agreementor its Subsidiaries, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property part thereof or interest therein, except in connection with the Arrangement.
(j) The Company has not received any written notice of, and (iii) to the Knowledge of the Company’s Knowledge, there are no pending Proceedings disputes regarding boundaries, easements, covenants or Proceedings threatened other matters relating to any of the Real Property.
(k) The current uses of the Real Property are lawful and valid under all applicable Law (other than Cannabis Laws) in writing all material respects and the Company has received all requisite permissions authorizing such uses. No Real Property is subject to take all any building or any portion use restriction that would restrict or prevent the business of the Company Leased as currently conducted in the Ordinary Course. Each Real Property is zoned for its current use, and such current use is in all respects a conforming use. No Governmental Entity having jurisdiction over the Real Property has issued, or to the Company’s knowledge, threatened to issue any interest therein by eminent domain notice or order, injunction, judgment, decree, ruling, writ or arbitration award that adversely affects the use or operation of any condemnation proceeding Real Property.
(l) To the Company’s Knowledge, all required consents and approvals (including, without limitation, certificates of occupancy) have been obtained in respect of the development of the Real Property and any alteration, extension or the jurisdictional equivalent thereof) or any sale or disposition in lieu other improvement thereof.
Appears in 1 contract
Samples: Arrangement Agreement (Harvest Health & Recreation Inc.)
Real and Personal Property. (a) The Company does not own any real property and as of the date of this Agreement, the Company does not have any contract to acquire any fee interest in real property. Section 3.16(a) of the Company Disclosure Letter Schedule sets forth (i) a correct and complete list of the addresses of all real property owned leased or subleased by the Company or any Company Subsidiary as and its Subsidiaries (the “Leased Real Property”) and (ii) a true and correct list of all Leases. The Leased Real Property constitutes all of the date of this Agreement. Each of real property leased, subleased or occupied by the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability Subsidiaries to conduct operate its business as currently conducted. All such assets and propertiesthere are no other lease, other than assets and properties in sublease, license, use or occupancy agreements for real property to which the Company or any of the Company or its Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liensis bound.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the The Company or any Company Subsidiary (other than SpinCo and one of its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company Subsidiaries has provided Parent a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold estates in or sublease interests in other rights to use all of the Company Leased Real Property, free and clear of all Liens, other than except for Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(dc) Each Lease for any Except as would not constitute a Company Leased Real Property is a valid Material Adverse Effect, all Leases are in full force and binding obligation of effect, neither the Company or nor any Company Subsidiary of its Subsidiaries that is a party thereto, to such Lease has received or given any written notice of any default thereunder which remains uncured as applicable, and to the Knowledge of the Companydate hereof. Except as would not constitute a Company Material Adverse Effect, the other parties thereto.
(e) Neither neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other of its Subsidiaries party to a Lease for any Company Leased Real Property or any lender, northereto (as the case may be) or, to the Knowledge of the Company, any Person other than the Company or its Subsidiary is there any other party alleging that the Companyin breach of, or default under, any Company Subsidiary or such other partyprovisions of any Lease nor has, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Personany event occurred which, other than with notice or the passage of time, or both, would give rise to such a default or breach, result in a loss of any rights or result in the creation of any Lien (except for Permitted Liens) thereunder or pursuant thereto.
(d) Except as would not constitute a Company Material Adverse Effect or as set forth on Section 3.16(d) of the Company or any Company SubsidiaryDisclosure Schedule, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a of its Subsidiaries party to any agreementLease has assigned such Lease, sublet any part of the premises covered thereby or transferred, conveyed, mortgaged, deeded in trust, or has encumbered any outstanding right interest in the leasehold estate or any of first offerits rights under such Lease. Except as set forth on Section 3.16(d) of the Company Disclosure Schedule and except for matters that would constitute Permitted Liens, right none of first refusal or option with respect the Leased Real Property is subject to the purchase or sale any leases, subleases, licenses, occupancy agreements, options, rights, tenancies of any real property kind or interest thereinother agreements or arrangements, other than the Leases, which grant to any Person (other than the Company and (iiiits Subsidiaries) the right to the Knowledge of the Company, there are no pending Proceedings use or Proceedings threatened in writing to take occupy all or any portion of the Company Leased Real Property whether as lessees, sublessees, occupants, licensees or any interest therein by eminent domain otherwise.
(e) Except as would not constitute a Company Material Adverse Effect, the Company and its Subsidiaries have valid title to, or any condemnation proceeding (valid and enforceable rights to use under existing franchises, easements or the jurisdictional equivalent thereof) licenses of, or any sale or disposition in lieu thereofvalid and enforceable leasehold interests in, all of their material tangible personal properties and assets necessary to carry on their businesses as currently conducted, free and clear of all Liens, except for Permitted Liens.
Appears in 1 contract
Samples: Merger Agreement (Xo Group Inc.)
Real and Personal Property. (a) Section 3.16(a22(a) of the Company Disclosure Letter sets forth a true, correct and complete list of all real property (including their street addresses) owned by the Company or any a Subsidiary or which the Company or a Subsidiary hold an ownership interest (the “Owned Real Property”). Except as of the date of this Agreement. Each set forth in Section 22(a) of the Company Disclosure Letter, the Company and each Company Subsidiary has its Subsidiaries have good, valid and marketable fee defensible title to, or valid leasehold or other equivalent use and/or occupancy interests in, to all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which Owned Real Property owned by the Company or any of the Company Subsidiaries has leasehold interestsits Subsidiaries, are free and clear of all Liens Liens, except for Permitted Liens..
(b) Section 3.16(b22(b) of the Company Disclosure Letter sets forth a true, correct and complete list of each lease, sublease, license or similar use, co-working service any and occupancy Contract (each, a “Lease”), in accordance with all premises which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”, and together with the Owned Real Property, the “Real Property”). Section (22)(21) as of the Company Disclosure Letter lists all of the Leased Real Property and sets out, in respect of each lease: (i) the municipal address and applicable unit or premises leased; (ii) the date of this Agreement. The Company has provided Parent a correct the lease; (iii) the original and complete copy current parties to the lease; (iv) the area of the space subject to each such Leaselease; (v) the remaining term and any unexpired options to extend or renew (as applicable); (vi) the rent payable thereunder; (vii) the amount of any prepaid rent (if any), and all amendments thereto(viii) the identification of any guarantee or security deposits given in respect of the lease to the extent available.
(c) The Company and each Company Subsidiaryits Subsidiaries have good, as applicablevalid and marketable title to, have and/or a valid leasehold and enforceable interest and tenure (whether leasehold, licenced or sublease interests otherwise) in all of the Company Leased Real Property, free including in and clear of all Liens, other than Permitted Liens. The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of to the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leasesfixtures thereto.
(d) Each Lease for There are no leases, subleases, licenses, concessions or other Contracts, written or oral, granting to any Company Leased Person the right of use or occupancy of any portion of the Real Property is a valid and binding obligation except in favor of the Company or any its Subsidiaries. There are no Persons in possession of such Real Property except the Company Subsidiary that is a party thereto, as applicable, and to the Knowledge or one of the Company, the other parties theretoits Subsidiaries.
(e) Neither the The Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other partyand/or its Subsidiaries, as the case may be, enjoys exclusive, peaceful, and quiet possession of the Leased Real Property in accordance with the terms of the lease thereof, is in material not in default or breach or violation of or default under such Lease.lease, and no event has occurred which, after the giving of notice, with lapse of time, or both, would constitute a default or breach by the Company and/or its Subsidiaries. The Company and/or its Subsidiaries, as the case may be, has timely paid all rent and other sums due and payable under the lease(s) for the Leased Real Property.
(f) Except Each Real Property is sufficient for the purpose of the business of the Company and/or its Subsidiaries as would not reasonably be expected presently conducted at such Real Property location, and the Company and its Subsidiaries own, lease or licence all personal property as is necessary for them to conduct their business as presently conducted (collectively, the “Personal Property”), and the Company and its Subsidiaries have good and valid title to, individually or in the aggregatea valid and enforceable interest (whether a leasehold interest or otherwise) in, have a Company Material Adverse Effect: all of such Personal Property.
(ig) There are no material suits, actions or proceedings pending or, to the Knowledge Company's Knowledge, threatened against or affecting any of the Real Property or Personal Property before any Governmental Entity.
(h) There are no pending, or to the Company’s Knowledge, no Personthreatened or contemplated condemnation, other than eminent domain or expropriation proceedings with respect to any of the Real Property, or any part thereof, and none of the Company or any Company Subsidiaryof its Subsidiaries has received any notice, possessesoral or written, uses of the intention of any Governmental Entity or occupies all other Person to take or use any Real Property, or any part thereof.
(i) No Person has any right of first refusal, undertaking or commitment or any right or privilege capable of becoming such, to purchase any of the Real Property (or any portion thereof or interest therein) or any of any Company Leased Real Property, (ii) neither the material assets owned or leased or otherwise held by the Company nor any Company Subsidiary is a party to any agreementor its Subsidiaries, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property part thereof or interest therein, except in connection with the Arrangement.
(j) The Company has not received any written notice of, and (iii) to the Knowledge of the Company’s Knowledge, there are no pending Proceedings disputes regarding boundaries, easements, covenants or Proceedings threatened other matters relating to any of the Real Property.
(k) The current uses of the Real Property are lawful and valid under all applicable Law (other than Cannabis Laws) in writing all material respects and the Company has received all requisite permissions authorizing such uses. No Real Property is subject to take all any building or any portion use restriction that would restrict or prevent the business of the Company Leased as currently conducted in the Ordinary Course. Each Real Property is zoned for its current use, and such current use is in all respects a conforming use. No Governmental Entity having jurisdiction over the Real Property has issued, or to the Company's knowledge, threatened to issue any interest therein by eminent domain notice or order, injunction, judgment, decree, ruling, writ or arbitration award that adversely affects the use or operation of any condemnation proceeding Real Property.
(l) To the Company’s Knowledge, all required consents and approvals (including, without limitation, certificates of occupancy) have been obtained in respect of the development of the Real Property and any alteration, extension or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof.other improvement thereof.
Appears in 1 contract
Real and Personal Property. (a) Section 3.16(a) of Neither the Company Disclosure Letter sets forth a correct and complete list of all real property owned by the Company or any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or nor any of the Company its Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liensown any real property.
(b) Section 3.16(b3.9(b) of the Company Company’s Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any Schedule lists all real property or obtains co-working services from or to leased by any other Person (whether Acquired Company as a tenant lessee, sub-lessee or subtenant or in accordance with other occupancy or service arrangements) assignee (the “Company Leased Real Property”,” including for each lease or other agreement set forth thereon: (i) as the street address of the real property subject thereto, (ii) the lessor, lessee and current occupant (if different from lessee) of such real property, (iii) the expiration date of this Agreementthe agreement, (iv) available renewal, extension and purchase options (and the party entitled to exercise such option and date notice of services must be given), (v) monthly and other payments under the agreement (including fixed rent, percentage rent and any amounts otherwise payable under the agreement), (vi) the amount of the security deposit held by the lessor or letter of credit or surety bond held in lieu of a deposit, and (vii) the names under which the Acquired Company leasing such real property has conducted business, entered into contracts or held itself out to the general public from such location. The Company has provided Parent a correct and complete copy All Leased Real Property is leased pursuant to valid written leases listed in Section 3.16(a) of the Company’s Disclosure Schedule. Such leases, as amended to date, contain the entire agreement between the landlord of each such Leaseof the leased premises and the applicable Acquired Company, and all amendments theretothere is no other Contract between the landlord and any Acquired Company affecting such Leased Real Property. Except as set forth in Section 3.9(b) of the Company’s Disclosure Schedule, no Acquired Company leases real property as a lessor or sublessor.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease Acquired Companies’ interests in the Leased Real Property are owned by the respective Acquired Companies free and clear of all Liens, variances, or limitations of any nature, other than Permitted Liens and as set forth in Section 3.9(c) of the Company’s Disclosure Schedule. To the actual knowledge of the Sellers, all buildings, plants, and structures owned by any Acquired Company lie wholly within the boundaries of the Leased Real Property in question and do not encroach upon the property of, or otherwise conflict with the property rights of, any other Person. To the actual knowledge of the Sellers, there are no buildings, structures, fixtures, or other improvements primarily situated on adjoining property that encroach on any part of the Leased Real Property. To the actual knowledge of the Sellers, each parcel of Leased Real Property abuts on, and has direct vehicular access to, a public road or has access to a public road via a permanent, irrevocable, appurtenant easement benefiting such Leased Real Property and constituting a part thereof. To the actual knowledge of the Sellers, certificates of occupancy are in full force and effect for each location of Leased Real Property, and the uses thereof being made by the Acquired Companies do not violate any applicable zoning, subdivision, land use or other Law. No third party has a right to acquire any interest in the Acquired Companies’ interest in the Leased Real Property. To the actual knowledge of the Sellers, there is no existing or proposed plan to modify or realign any street or highway or any existing or proposed eminent domain Litigation that would result in the taking of all or any part of any parcel of Leased Real Property or that would prevent or hinder the continued use of any such parcel as used by the Acquired Companies. None of the Leased Real Property is located within a flood plain for flood insurance purposes.
(d) The Acquired Companies own all tangible personal property reflected as owned in the Year-End GAAP Financial Statements, free and clear of all Liens, other than Permitted Liens. The Company Liens and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property as set forth in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(dSection 3.9(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company’s Disclosure Schedule. All the tangible personal property purchased or otherwise acquired by the Acquired Companies since the Year-End Balance Sheet Date is owned by the Acquired Companies free and clear of all Liens, the other parties thereto.
(ethan Permitted Liens and as set forth in Section 3.9(d) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that ’s Disclosure Schedule. A copy of the Company, any fixed asset register of each Acquired Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) has been delivered to the Knowledge Buyer. Each such register contains a complete and correct list of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge fixed Assets of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion applicable Acquired Company as of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofdate specified.
Appears in 1 contract
Samples: Stock Purchase Agreement (Heritage Insurance Holdings, Inc.)
Real and Personal Property. (a) The Company does not own any real property.
(b) Section 3.16(a) 3.13 of the Company Disclosure Letter sets forth the address of each Leased Real Property, and a correct true and complete list of all real property owned by Leases (including all amendments, extensions, renewals, guaranties and other agreements with respect thereto) for each such Leased Real Property (including the Company or any Company Subsidiary as date and name of the date of this Agreement. Each of the Company and each Company Subsidiary has good, valid and marketable fee title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of parties to such properties and assets or materially interfere with its ability to conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company or any of the Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of each lease, sublease, license or similar use, co-working service and occupancy Contract (each, a “Lease”Lease document), in accordance with which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”) as of the date of this Agreement. The Company has provided delivered to Parent a correct true and complete copy of each such Lease document, and in the case of any oral Lease, and all amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all a written summary of the Company Leased Real Propertymaterial terms of such Lease. With respect to all Leases, free (i) each Lease is valid, binding, enforceable and clear of all Liens, other than Permitted Liens. The Company in full force and each Company Subsidiary enjoy peaceful effect and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is a valid and binding obligation of neither the Company or any Company Subsidiary that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, thereto is in material breach or violation default (with or without notice, lapse of time or both) under any Lease, (ii) no termination event or condition or uncured default under such Lease.
(fwith or without notice, lapse of time or both) Except as would not reasonably be expected toon the part of the Company or, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, any other party to the Lease, exists under any Lease, (iii) the Company’s possession and quiet enjoyment of the Leased Real Property under such Lease has not been disturbed, and to the Company’s knowledge, there are no Person, other than disputes with respect to such Lease; (iv) the Company has not subleased, licensed or otherwise granted any Company Subsidiary, possesses, uses Person the right to use or occupies all occupy such Leased Real Property or any portion of any Company Leased Real Property, thereof; (iiv) neither the Company nor has not collaterally assigned or granted any Company Subsidiary is a party to other security interest in such Lease or any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, ; and (iiivi) to the Knowledge of the Company, there are no pending Proceedings liens or Proceedings threatened in writing encumbrances on the estate or interest created by such Lease except for Permitted Liens. The Company has not received notice of any pending, and to take all or any portion the Knowledge of the Company there is no threatened, condemnation with respect to any real property leased pursuant to any of the Leases. The Leased Real Property indentified in Section 3.13 of the Company Disclosure Letter comprises all of the real property used in the business of the Company.
(c) The Company has good and marketable title to, or any interest therein by eminent domain valid and enforceable rights to use under existing material franchises, easements or any condemnation proceeding (licenses, or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofvalid and enforceable leasehold interests in, all of its material tangible personal properties and assets necessary to carry on its business as such business is now being conducted, free and clear of all Liens, except for Permitted Liens.
Appears in 1 contract
Samples: Merger Agreement (TNS Inc)
Real and Personal Property. (a) Section 3.16(aSchedule 4.16(a) of the Company Disclosure Letter sets forth includes a correct complete and complete accurate list of all real property owned by any Amtrol Company (the “Owned Real Property”) and real property (the “Leased Real Property”) held under any lease, sublease, license, or other occupancy agreement by any Amtrol Company (collectively the “Real Property Leases”). Schedule 4.16(a) includes list of all of the Real Property Leases, true, correct and complete copies of which have been made available to Purchaser, including all amendments, extensions, renewals, guaranties and other agreements with respect thereto. The buildings, plants, facilities, installations, fixtures and other structures or improvements themselves included as part of, or located on or at, the Owned Real Property are not in material violation of, or in material conflict with, any applicable Law (including zoning ordinances and regulations). All covenants or other restrictions (if any) to which the use by any Amtrol Company Subsidiary of any of the Owned Real Property is subject are being in all material respects properly performed and observed, and no Amtrol Company has received any notice of any material violation (or claimed violation) thereof. The activities carried on by any Amtrol Company as tenant under any of the Real Property Leases in all buildings, plants, facilities, installations and other structures or improvements included as a part of, or located on or at, the Leased Real Property are not in material violation of, or in material conflict with, any applicable Law (including zoning ordinances and regulations) or the terms of any of the Real Property Leases.
(b) The applicable Amtrol Company holds good and marketable fee simple title to the Owned Real Property, which shall be free and clear of all Liens as of the date Closing Date, except Permitted Liens, and there are no outstanding options, rights of this Agreementfirst offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein. Each No Amtrol Company has received a copy of an affidavit of a mechanic’s or similar Lien which may be filed against the Owned Real Property or the Leased Real Property.
(c) All of the Company Real Property Leases are in full force and each Company Subsidiary has goodeffect, valid and marketable fee title toenforceable in accordance with their respective terms, or valid leasehold or other equivalent use and/or occupancy interests insubject to applicable bankruptcy, all its tangible properties and assets except for Permitted Liens or minor defects in titleinsolvency, easementsreorganization, restrictive covenants moratorium and similar encumbrances 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 impediments thatin equity). There exist no defaults (or any event or circumstance has occurred or exists which, in with the aggregatedelivery of notice, do not and will not materially decrease passage of time or both, would constitute a default) on the value part of any Amtrol Company under any Real Property Lease or, to the Knowledge of the Company, on the part of any other party to any Real Property Lease, that could have a material impact on the ongoing operations of the business of such properties and assets Amtrol Company or materially interfere with its ability to conduct its business as currently conductedpermit the termination, modification or acceleration of rent under such Real Property Lease. All such assets and properties, other than assets and properties in which Neither the Company nor any of the Amtrol Companies have entered into any lease of any of the Leased Real Property where the Company or any of the Amtrol Companies is the lessor or sublessor or is otherwise similarly situated, and there are no other Contracts granting to any Person other than an Amtrol Company Subsidiaries has leasehold interests, are free and clear of all Liens except for Permitted Liensthe right to use or occupy any Leased Real Property.
(bd) Section 3.16(b) There is no condemnation, expropriation or other proceeding in eminent domain pending or threatened in writing, or to the Knowledge of the Company Disclosure Letter sets forth a correct and complete list of each leaseCompany, subleasethreatened orally, license or similar use, co-working service and occupancy Contract (each, a “Lease”), in accordance with which the Company affecting any Owned Real Property or any Company Subsidiary portion thereof or interest therein. To the Knowledge of the Company, there is no condemnation, expropriation or other proceeding in eminent domain, pending or threatened, affecting any Leased Real Property or any portion thereof or interest therein.
(other than SpinCo e) All utilities required for the normal, customary and its Subsidiaries) leases, subleases or otherwise uses or occupies any efficient operation of the respective businesses of the Amtrol Companies are currently available at the Owned Real Property and the Leased Real Property in a quality and quantity sufficient for operation of the business of the Amtrol Companies conducted thereat and all utility service lines serving the Owned Real Property are located either within the boundary lines of such real property or obtains co-working services from within lands dedicated to public use or within recorded easements for the same; there are no facts relating to any other Person (whether as a tenant utility arrangements or subtenant moratoriums which would adversely impact the Owned Real Property or the Leased Real Property or the operation of the respective businesses of the Amtrol Companies conducted thereat; all such utility service lines are in accordance good condition; and there are no obligations in connection with other occupancy the Owned Real Property or service arrangements) (the “Company Leased Real Property”) as , or any so-called “recapture agreement” involving refund for sewer extension, over sizing utility lines, lighting or like expense or charge for work or services done upon or relating to the Owned Real Property or the Leased Real Property which will bind Purchaser or its Affiliates or the Owned Real Property or the Leased Real Property from and after the Closing. Any so-called tap fees, hook-up fees or other associated charges accrued to date have been fully paid when due in the ordinary course of the date businesses of this Agreement. the Amtrol Companies with respect to all potable and industrial water and all gas, electrical, steam, compressed air, telecommunication, sanitary and storm sewage lines and systems and other similar systems serving the Owned Real Property and the Leased Real Property.
(f) There are no encroachments upon the Owned Real Property or the Leased Real Property from adjacent properties, nor encroachments of any Improvement located on the Owned Real Property or, to the Knowledge of the Company, the Leased Real Property upon adjoining land.
(g) The Company has provided Parent delivered to Purchaser copies of all existing owner’s title insurance policies for the Owned Real Property, together with copies of all documents referenced therein, and the same are true, accurate and complete.
(h) The Company has delivered to Purchaser a correct and complete copy of each such Leasethe most recently performed surveys of the Owned Real Property, and all amendments theretothe same are true, accurate and complete.
(ci) The Company and each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all No portion of the Company Owned Real Property or, to the Knowledge of the Company, the Leased Real PropertyProperty is subject to any significant real property Tax increases or recapture of Taxes occasioned by retroactive revaluation, special assessments, change in the land usage, or loss of any exemption or benefit status.
(j) None of the Amtrol Companies has entered into any Contracts materially and adversely affecting or materially and adversely impacting the Owned Real Property or the Leased Real Property which will bind Purchaser or any of its Affiliates in respect of the Owned Real Property or the Leased Real Property from and after the Closing Date.
(k) Each of the Amtrol Companies owns good and valid title to all material items of tangible personal property reflected as owned by it in the Interim Balance Sheet (other than Inventory sold since the date of the Interim Balance Sheet in the Ordinary Course of Business), free and clear of all Liens, other than Permitted Liens, and as set forth in Schedule 4.16(k). The All the material items of tangible personal property purchased or otherwise acquired by an Amtrol Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all since the date of the Leases for any Interim Balance Sheet (other than Inventory acquired and sold in the Ordinary Course of Business since the date of the Interim Balance Sheet) is owned by such Amtrol Company Leased Real Property free and clear of all Liens, other than Permitted Liens and as set forth in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable LeasesSchedule 4.16(k).
(dl) Each Lease The buildings, plants, structures and equipment owned or leased by the Amtrol Companies and used in connection with their respective businesses (i) are in good operating condition and repair as is consistent for their age, (ii) are appropriate for the uses to which they are being put by the Amtrol Companies, (iii) have been maintained in accordance with normal industry practice and (iv) require no material repair, replacement or maintenance, other than routine maintenance and repair for similar assets of like age and construction. There are no facts or conditions affecting any Company Leased Real Property is a valid and binding obligation of the Company or any Company Subsidiary that is a party theretobuildings, as applicableplants, structure and to the Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected toequipment which would, individually or in the aggregate, have a Company Material Adverse Effect: (i) to interfere in any material respect with the Knowledge use or occupancy of the Companybuildings, no Personplants, other than the Company or any Company Subsidiary, possesses, uses or occupies all structures and equipment or any portion of any Company Leased Real Property, (ii) neither thereof in the Company nor any Company Subsidiary is a party to any agreement, or has any outstanding right of first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (iii) to the Knowledge operation of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any portion of the Company Leased Real Property or any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereofbusiness conducted therein.
Appears in 1 contract
Samples: Merger Agreement
