Title and Related Matters. (a) Seller has good, valid and marketable title to the Acquired Assets free and clear of all Encumbrances other than the Permitted Encumbrances and those Encumbrances that are to be released at or prior to Closing. Except as set forth in Schedule 5.8(a), Seller has not leased or otherwise granted to any Person the right to use or occupy the Owned Real Property, and there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property. (b) Except for any Excluded Assets and for any assets being transferred by Seller pursuant to the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all of the material real property interests used or held for use by Seller in connection with the Transferred Business and necessary to conduct the Transferred Business in all material respects as conducted on the date of this Agreement and, except to the extent permitted by Section 7.1, as of the Effective Time, and (ii) the Acquired Assets include the material property, plant and equipment used by Seller in the VA Distribution Business in the Transferred Territory (other than as expressly contemplated hereby). (c) Except as set forth on Schedule 5.8(c), Seller has not received written notice from any Person within three years prior to the date of this Agreement asserting that Seller does not have the right, as a result of title defects or title failures, to use or occupy any portion of the Owned Real Property or lands covered by the Transferred Easements, other than those notices that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect. (d) The buildings on the Owned Real Property are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal Property, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices. (e) No condemnation or eminent domain proceeding against any part of the Owned Real Property or the Transferred Easements is pending or, to the Knowledge of Seller, threatened, other than such proceedings that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect. (f) To the Knowledge of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts of the Owned Real Property or any of the Transferred Easements. (g) All of the Inventories included as Acquired Assets consist of a quality, and are not more than the quantity, reasonably expected to be usable in the ordinary course of business.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Allegheny Energy, Inc), Asset Purchase Agreement (Allegheny Energy, Inc)
Title and Related Matters. (a) Seller has good, valid and marketable title to the Acquired Assets free and clear of all Encumbrances other than the Permitted Encumbrances and those Encumbrances that are to be released at or prior to Closing. Except as set forth in Schedule 5.8(a5.9(a) hereto and except for assets of Seller sold, used or disposed of in the ordinary course of the Business since the Financial Statement Date, (i) Seller has indefeasible title to all real and personal, tangible and intangible, property and other assets reflected in the Unaudited Financial Statements as owned by Seller or acquired by Seller after the Financial Statement Date, including the Purchased Assets, free and clear of all Liens, except Permitted Liens and (ii) all assets set forth on the Unaudited Financial Statements or acquired by Seller after the Financial Statement Date are free from obvious defects, have been maintained in accordance with Seller's customary practices, are in good operating condition and repair (subject to normal wear and tear), and suitable for the purposes for which they presently are used and presently are proposed to be used. Schedule 5.9
(a) hereto sets forth a complete and accurate summary of all Operating Leases of tangible personal property to which Seller has not leased or otherwise granted is a party that have annual rental payments in excess of $5,000, describing the expiration date of such lease, the name of the lessor, the annual rental payment and whether a consent is required from the lessor to any Person consummate the right to use or occupy the Owned Real Property, and there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Propertytransactions contemplated hereby.
(b) Except for any Excluded Assets All Operating Leases of Seller are in full force and for any assets being transferred by Seller pursuant to the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all of the material real property interests used or held for use by Seller in connection with the Transferred Business and necessary to conduct the Transferred Business in all material respects as conducted on the date of this Agreement and, except to the extent permitted by Section 7.1, as of the Effective Timeeffect, and (ii) the Acquired Assets include the material property, plant valid and equipment used by Seller enforceable in the VA Distribution Business in the Transferred Territory (other than as expressly contemplated hereby).
(c) Except as set forth on Schedule 5.8(c), accordance with their respective terms. Seller has not received any written notice from of any event of default or event which constitutes or would constitute (with notice or lapse of time or both) a default by Seller or any other Person within three years under any Operating Lease of Seller. All rent and other amounts due and payable on or prior to the date of this Agreement asserting with respect to Seller's Operating Leases have been paid. Seller has not received any written notice that Seller does not have the right, as a result of title defects or title failures, landlord with respect to use or occupy any portion Real Property Lease would refuse to renew such lease upon expiration of the Owned Real Property period thereof upon substantially the same terms, except for rent increases consistent with past experience or lands covered by market rentals.
(c) None of the Transferred Easements, other than those notices that would not individuallyPurchased Assets is subject to any Contracts of sale or lease except as set forth in Schedule 5.9(c), or Contracts for the sale of inventory in the aggregate, reasonably be expected to have a Material Adverse Effectordinary and regular course of the Business.
(d) The buildings on Except as set forth in Schedule 5.29, there has not been since the Owned Real Property are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal PropertyFinancial Statement Date any sale, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices.
(e) No condemnation or eminent domain proceeding against any part of the Owned Real Property or the Transferred Easements is pending or, to the Knowledge of Seller, threatened, other than such proceedings that would not individuallylease, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge any other disposition or distribution by Seller of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts of the Owned Real Property or any of the Transferred Easements.
(g) All of the Inventories included as Acquired Assets consist of a qualityits assets or properties now owned by it, and are not more than the quantity, reasonably expected to be usable except transactions in the ordinary and regular course of businessthe Business.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Headwaters Inc), Asset Purchase Agreement (Headwaters Inc)
Title and Related Matters. (a) Seller has good, valid and marketable title to the Acquired Assets free and clear of all Encumbrances other than the Permitted Encumbrances and those Encumbrances that are to be released at or prior to Closing. 2.6.1 Except as set forth in Schedule 5.8(a)2.6.1 attached hereto, Seller Companies have good and marketable title to all real and personal, tangible and intangible, property and other assets reflected in the Financial Statements or acquired after the Financial Statement Date, free and clear of all Liens, Claims and Orders except Permitted Liens. All properties used in the Business for the periods covered by the Financial Statements are reflected in the Financial Statements in accordance with and to the extent required on an accrual accounting basis. Schedule 2.6.1 attached hereto sets forth a complete and accurate summary of all leased assets that have annual rental payments in excess of $10,000, describing the expiration date of such lease, the name of the lessor, the annual rental payment and whether a consent is required from the lessor to consummate the transactions contemplated hereby.
2.6.2 All Parent’s and Seller Companies’ leases that are part of the Acquired Assets are in full force and effect, and valid and enforceable in accordance with their respective terms. Neither Parent nor any Seller Company has not leased or otherwise granted to received any Person the right to use or occupy the Owned Real Propertynotice of, and there exists no event of default or event which constitutes or would constitute (with notice or lapse of time or both), any default by Parent, any Seller Company or any other Person under any lease. All rent and other amounts due and payable with respect to Parent’s and Seller Companies’ leases that are no outstanding optionspart of the Acquired Assets have been paid through the date of this Agreement, and all rent and other amounts due and payable with respect to Parent’s and Seller Companies’ leases that are part of the Acquired Assets and are due and payable on or prior to the Closing Date will have been paid prior to the Closing Date. All lessors under the leases that are part of the Acquired Assets have consented (where such consent is necessary) or prior to the Closing will have consented (where such consent is necessary) to the transactions contemplated pursuant to this Agreement and the agreements, documents and transactions contemplated hereby and thereby without requiring material modification in the rights or obligations thereunder. Neither Parent nor any Seller Company has received any written notice that the landlord with respect to any real property lease that is part of first offer the Acquired Assets would refuse to renew such lease upon expiration of the period thereof upon substantially the same terms, except for rent increases consistent with past experience or rights of first refusal to purchase such Owned Real Propertymarket rentals.
(b) Except for 2.6.3 None of the Acquired Assets belonging to Parent or Seller Companies is or will be on the Closing Date subject to any Excluded Assets and for any assets being transferred by Seller pursuant to the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder), (i) Contracts of sale or lease except as set forth in Schedule 2.6.3 attached hereto, except Contracts for the Owned Real Property sale of inventory in the ordinary and regular course of business or (ii) Liens, except for Permitted Liens and the Transferred Easements represent all of Liens set forth in Schedule 2.6.3 attached hereto.
2.6.4 Except as set forth in Schedule 2.6.4 attached hereto, the material buildings, structures and improvements included within the Acquired Assets’ real property interests used or held for use by Seller in connection with (collectively, the Transferred Business “Improvements”) have complied and necessary to conduct the Transferred Business comply in all material respects as conducted on with all applicable Regulations, including building and zoning ordinances and no material alteration, repair, improvement or other work that could give rise to a Lien has been performed in respect to such Improvements within the date of this Agreement andlast 120 days. The Improvements and the mechanical systems situated therein, except to including without limitation the extent permitted by Section 7.1heating, as of the Effective Timeelectrical, air conditioning and plumbing systems, are in good operating condition and repair, ordinary wear and tear excepted, and (ii) are adequate and suitable for the purposes for which they are presently being used, and the roof of each Improvement is in satisfactory condition and is not in need of current repair or replacement. The Acquired Assets include Assets’ real property and its continued use, occupancy and operation as currently used, occupied and operated does not constitute a nonconforming use under any Regulation or Order affecting the material property, plant and equipment used by Seller in the VA Distribution Business in the Transferred Territory real property (other than possible set back violations, none of which will have a Material Adverse Effect on the Business’s real property or its continued use, occupancy and operation as expressly contemplated hereby).
(c) Except as set forth on Schedule 5.8(ccurrently used, occupied and operated), Seller has and the continued existence, use, occupancy and operation of each Improvement, and the right and ability to repair and/or rebuild such Improvements in the event of casualty, is not received written notice from dependent on any Person within three years prior special Permit, exception, approval or variance. There is no pending or, to the date knowledge of this Agreement asserting that Parent and Seller does not have Companies, threatened or proposed proceeding or governmental action to modify the rightzoning classification of, or to take by the power of eminent domain (or to purchase in lieu thereof), or to classify as a result of title defects landmark, or title failuresto impose special assessments on, or otherwise to use take or occupy restrict in any portion way the right to use, develop or alter, all or any part of the Owned Real Property or lands covered by the Transferred Easements, other than those notices Business’ real property that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the knowledge of Parent and Seller Companies, there are no encroachments upon any of the Business’ real property, and no portion of any Improvement owned by Parent or Seller Companies encroaches upon any property not included within the Business’ real property or upon the area of any easement affecting the Business’ real property. Each Improvement has direct access, adequate for the Business, in the ordinary course, to a public street adjoining the Business’ real property on which such Improvement is situated, and, to the knowledge of Parent and Seller Companies, no existing way of access to any Improvement crosses or encroaches upon any property or property interest not included in the Acquired Assets.
2.6.5 There has not been since the Financial Statement Date, and will not be prior to the Closing Date, any sale, lease, or any other disposition or distribution by Parent or any Seller Company of any Acquired Assets, now or hereafter owned by it, except transactions in the ordinary and regular course of business or as otherwise consented to by Purchaser. Immediately after the Closing, Purchaser will own, or have the unrestricted right to use, all properties and assets that are used (dor necessary) The buildings in connection with the Business, except for the Excluded Assets, on the Owned Real Property same economic basis as before the Closing.
2.6.6 The Acquired Assets constitute all of the assets necessary or appropriate for the continued operation of the Business.
2.6.7 All of the Acquired Assets consisting of tangible assets are located at the Locations and are in good operating condition relative to their age working condition, except for reasonable wear and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal Property, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices.
(e) No condemnation or eminent domain proceeding against any part of the Owned Real Property or the Transferred Easements is pending or, to the Knowledge of Seller, threatened, other than such proceedings that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts of the Owned Real Property or any of the Transferred Easements.
(g) All of the Inventories included as Acquired Assets consist of a qualitytear, and are not more than sufficient for the quantity, reasonably expected purposes for which such Acquired Assets are currently used and for the purpose proposed to be usable used in the ordinary course operations of businessthe Business pursuant to the transactions contemplated pursuant to this Agreement and the agreements, documents and transactions contemplated hereby and thereby. No Seller Company nor Parent is aware of the need to replace or purchase any material equipment for use in the operation of the Business prior to Closing or after the Closing pursuant to the transactions contemplated pursuant to this Agreement and the agreements, documents and transactions contemplated hereby and thereby, except as related to the Imaging Centers Capital Expenditures. All such Acquired Assets are reflected in the Financial Statements at net book value.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Modern Medical Modalities Corp), Asset Purchase Agreement (Modern Medical Modalities Corp)
Title and Related Matters. (a) Seller Except as set forth in SCHEDULE 2.14(A) hereto, the Corporation has good, good and valid and marketable title to all its real and personal property and other assets reflected in the Acquired Assets Financial Statements or acquired after the Financial Statement Date, free and clear of all Encumbrances Liens, except Permitted Liens. All properties used in the Corporation's business operations as of the Financial Statement Date are reflected in the Financial Statements and are reflected therein in accordance with and to the extent required by GAAP, except as to those assets which are leased and except as otherwise noted in SCHEDULE 2.9(A). SCHEDULE 2.14(B) hereto sets forth a complete and accurate list of all such leased assets which have annual rental payments in excess of $6,000 (including the expiration date of such lease, the name of the lessor, the annual or monthly rental payment and whether a consent is required from the lessor to consummate the transactions contemplated hereby).
(i) All the Corporation's leases are in full force and effect, and valid and enforceable in all material respects in accordance with their respective terms. The Corporation has not received any notice of any, and there exists no event of default or event which constitutes or would constitute (with notice or lapse of time or both) a default by the Corporation or any other than Person under any lease.
(ii) All rent and other amounts due and payable with respect to the Permitted Encumbrances Corporation's leases have been paid through the date of this Agreement and those Encumbrances that all rent and other amounts due and payable with respect to the Corporation's leases which are to be released at due and payable on or prior to Closing. Except as set forth in Schedule 5.8(a), Seller the Closing Date will have been paid on or prior to the Closing Date.
(iii) The Corporation has not leased or otherwise granted received no written notice that the landlord with respect to any Person currently existing real property lease would refuse to renew such lease upon expiration of the right to use period thereof upon substantially the same terms, except for rent increases consistent with past experience or occupy the Owned Real Property, and there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Propertymarket rentals.
(b) Except for None of the assets owned by the Corporation is or will be on the Closing Date subject to any Excluded Assets and for any assets being transferred by Seller pursuant to the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all Contracts of the material real property interests used sale or held for use by Seller lease (except as disclosed in connection with the Transferred Business and necessary to conduct the Transferred Business in all material respects as conducted on the date of this Agreement andSCHEDULE 2.14(B)), except to Contracts for the extent permitted by Section 7.1, as sale of inventory in the Effective Time, ordinary and regular course of business or (ii) Liens, except for Permitted Liens and the Acquired Assets include the material property, plant and equipment used by Seller Liens set forth in the VA Distribution Business in the Transferred Territory (other than as expressly contemplated hereby)SCHEDULE 2.14(C) hereto.
(c) Except as set forth on Schedule 5.8(cSCHEDULES 2.11 or 2.14(C), Seller there has not received written notice from any Person within three years been since the Financial Statement Date and will not be prior to the date of this Agreement asserting that Seller does not have the rightClosing Date, as a result of title defects any sale, lease, dividend or title failures, to use any other disposition or occupy any portion of the Owned Real Property or lands covered distribution by the Transferred Easements, other than those notices that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) The buildings on the Owned Real Property are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal Property, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices.
(e) No condemnation or eminent domain proceeding against any part Corporation of the Owned Real Property or the Transferred Easements is pending or, to the Knowledge of Seller, threatened, other than such proceedings that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts of the Owned Real Property or any of the Transferred Easements.
(g) All of the Inventories included as Acquired Assets consist of a qualityits assets or properties, and are not more than the quantitynow or hereafter owned by it, reasonably expected to be usable except transactions in the ordinary and regular course of business or as otherwise previously consented to in writing by the Purchaser; provided that transactions in the ordinary and regular course of business shall not be deemed to include any dividends or other distributions in respect of a Corporation's capital stock. Immediately after the Closing, the Corporation will continue to have the right to use all of its properties and assets as they are currently used in connection with the Corporation's business.
Appears in 1 contract
Samples: Stock Purchase Agreement (Lets Talk Cellular & Wireless Inc)
Title and Related Matters. (a) Seller has good, valid and marketable title to the Acquired Assets free and clear of all Encumbrances other than the Permitted Encumbrances and those Encumbrances that are to be released at or prior to ClosingThe Corporation owns no real property. Except as set forth in Schedule 5.8(a)2.13(a) hereto, Seller the Corporation has not leased good and marketable title to all ---------------- personal property and other assets reflected in the Financial Statements or otherwise granted acquired after the Financial Statement Date, free and clear of all Liens or Contracts of sale or lease other than Permitted Liens. All properties used in the Corporation's business operations as of the Financial Statement Date are reflected in the Financial Statements and are reflected therein in accordance with and to any Person the right extent required by GAAP, except as to use or occupy the Owned Real Property, and there those assets which are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property.leased. Schedule 2.13
(b) Except for any Excluded Assets hereto sets forth a complete and for any accurate list of all ---------------- such leased assets being transferred by Seller pursuant to which have annual rental payments in excess of $10,000 (including the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with expiration date of such lease, the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all name of the material real property interests used or held for use by Seller in connection with lessor, the Transferred Business annual rental payment and necessary whether a consent is required from the lessor to conduct consummate the Transferred Business in all material respects as conducted on the date of this Agreement and, except to the extent permitted by Section 7.1, as of the Effective Time, and (ii) the Acquired Assets include the material property, plant and equipment used by Seller in the VA Distribution Business in the Transferred Territory (other than as expressly transactions contemplated hereby).
(ci) Except as set forth on Schedule 5.8(c)All of the Corporation's leases are in full force and effect, Seller and valid and enforceable in accordance with their respective terms. The Corporation has not received written any notice from of any, and there exists no event of default or event which constitutes or would constitute (with notice or lapse of time or both) a default by the Corporation or any other Person within three years prior under any lease .
(ii) All rent and other amounts due and payable with respect to the Corporation's leases have been paid through the date of this Agreement asserting that Seller does not have the right, as a result of title defects or title failures, to use or occupy any portion of the Owned Real Property or lands covered by the Transferred Easements, other than those notices that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse EffectAgreement.
(diii) The buildings on All lessors under the Owned Real Property are Corporation's real property leases have consented (where such consent is necessary) to the consummation of the transactions contemplated by this Agreement without requiring material modification in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal Property, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practicesthe rights or obligations thereunder.
(eiv) No condemnation or eminent domain proceeding against The Corporation has received no written notice that the landlord with respect to any part real property lease would refuse to renew such lease upon expiration of the Owned Real Property period thereof upon substantially the same terms, except for rent increases consistent with past experience or the Transferred Easements is pending or, to the Knowledge of Seller, threatened, other than such proceedings that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effectmarket rentals.
(f) To the Knowledge of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts of the Owned Real Property or any of the Transferred Easements.
(g) All of the Inventories included as Acquired Assets consist of a quality, and are not more than the quantity, reasonably expected to be usable in the ordinary course of business.
Appears in 1 contract
Samples: Stock Purchase Agreement (Answer Think Consulting Group Inc)
Title and Related Matters. (a) Seller has good, valid and marketable title to the Acquired Assets free and clear of all Encumbrances other than the Permitted Encumbrances and those Encumbrances that are to be released at or prior to Closing. Except as set forth in Schedule 5.8(a)3.11(a) attached hereto, Seller the Purchaser has not good and marketable title to all real and personal, tangible and intangible, property and other assets reflected in the Financial Statements or acquired after the Financial Statement Date, free and clear of all Liens, except Permitted Liens. All properties used in the Purchaser’s business operations for the periods covered by the Financial Statements are reflected in the Financial Statements, except as to those assets that are leased. Schedule 3.11 (b) attached hereto sets forth a complete and accurate summary of all leased or otherwise granted assets that have annual rental payments in excess of $12,000, describing the expiration date of such lease, the name of the lessor, the annual rental payment and whether a consent is required from the lessor to any Person consummate the right to use or occupy the Owned Real Property, and there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Propertytransactions contemplated hereby.
(b) Except for All the Purchaser’s leases are in full force and effect, and valid and enforceable in accordance with their respective terms. The Purchaser has not received any Excluded Assets notice of any, and for there exists no event of default or event which constitutes or would constitute (with notice or lapse of time or both) a default by the Purchaser or any assets being transferred by Seller pursuant other Person under any lease. All rent and other amounts due and payable with respect to the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all of the material real property interests used or held for use by Seller in connection with the Transferred Business and necessary to conduct the Transferred Business in all material respects as conducted on Purchaser’s leases have been paid through the date of this Agreement andand all rent and other amounts due and payable with respect to the Purchaser’s leases that are due and payable on or prior to the Closing Date will have been paid prior to the Closing Date. All lessors under the Purchaser’s real property leases have consented (where such consent is necessary) or prior to the Closing will have consented (where such consent is necessary) to the consummation of the transactions contemplated by this Agreement without requiring material modification in the rights or obligations thereunder. The Purchaser has received no written notice that the landlord with respect to any real property lease would refuse to renew such lease upon expiration of the period thereof upon substantially the same terms, except to the extent permitted by Section 7.1, as of the Effective Time, and (ii) the Acquired Assets include the material property, plant and equipment used by Seller in the VA Distribution Business in the Transferred Territory (other than as expressly contemplated hereby)for rent increases consistent with past experience or market rentals.
(c) Except None of the assets belonging to the Purchaser is or will be on the Closing Date subject to any (i) Contracts of sale or lease except as set forth on in Schedule 5.8(c)3.11(c) attached hereto, Seller has not received written notice from any Person within three years prior to except Contracts for the date sale of this Agreement asserting that Seller does not have the right, as a result of title defects or title failures, to use or occupy any portion of the Owned Real Property or lands covered by the Transferred Easements, other than those notices that would not individually, or inventory in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) The buildings on the Owned Real Property are in good operating condition relative to their age ordinary and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal Property, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices.
(e) No condemnation regular course of business or eminent domain proceeding against any part of the Owned Real Property or the Transferred Easements is pending or, to the Knowledge of Seller, threatened, other than such proceedings that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no specialLiens, general or other assessments pending, threatened against, or affecting any parts of except for Permitted Liens and the Owned Real Property or any of the Transferred EasementsLiens set forth in Schedule 3.11(d) attached hereto.
(g) All of the Inventories included as Acquired Assets consist of a quality, and are not more than the quantity, reasonably expected to be usable in the ordinary course of business.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Synthesis Energy Systems Inc)
Title and Related Matters. (a) Seller The Corporation has good, valid good and marketable title to all real and personal property and other assets reflected in the Acquired Assets Financial Statements or acquired after the Financial Statement Date, free and clear of all Encumbrances other than Liens, except Permitted Liens and the Permitted Encumbrances liens of Xxxxx Fargo Business Credit Corp. All properties used in the Corporation's business operations as of the Financial Statement Date are reflected in the Financial Statements and are reflected therein in accordance with and to the extent required by GAAP, except as to those Encumbrances assets that are leased. The Corporation does not have any leased assets that have annual rental payments in excess of $5,000 (including the expiration date of such lease, the name of the lessor, the annual rental payment and whether a consent is required from the lessor to be released at consummate the transactions contemplated hereby).
(i) All the Corporation's leases are in full force and effect, and valid and enforceable in accordance with their respective terms. The Corporation has not received any notice of any, and there exists no event of default or event which constitutes or would constitute (with notice or lapse of time or both) a default by the Corporation or any other Person under any lease.
(ii) All rent and other amounts due and payable with respect to the Corporation's leases have been paid or accrued through the date of this Agreement and all rent and other amounts due and payable with respect to the Corporation's leases that are due and payable on or prior to Closing. the Closing Date will have been paid or accrued prior to the Closing Date.
(iii) All lessors under the Corporation's real property leases have consented (where such consent is necessary) or prior to Closing will have consented (where such consent is necessary) to the consummation of the transactions contemplated by this Agreement without requiring material modification in the rights or obligations thereunder.
(iv) The Corporation has received no written notice that the landlord with respect to any real property lease would refuse to renew such lease upon expiration of the period thereof upon substantially the same terms, except for rent increases consistent with past experience or market rentals.
(b) None of the assets belonging to the Corporation is or will be on the Closing Date subject to any (i) Contracts of sale or lease, except Contracts for the sale of inventory in the ordinary and regular course of business or (ii) Liens, except for Permitted Liens, and the liens of Xxxxx Fargo Business Credit Corp. Except as set forth in Schedule 5.8(a2.13(b) ---------------- hereto, the Corporation has not received any written notice regarding non- compliance or potential non-compliance of the buildings, structures and improvements included within the Corporation's leasehold property (collectively, the "Improvements") with applicable restrictions, building ------------ ordinances and zoning ordinances and all Regulations, and no material alteration, repair, improvement or other work that could give rise to a Lien has been performed in respect to such Improvements within the last 120 days. To the Knowledge of the Corporation, there is no pending, threatened or proposed proceeding or governmental action to modify the zoning classification of, or to take by the power of eminent domain (or to purchase in lieu thereof), Seller has not leased or to impose special assessments on, or otherwise granted to take or restrict in any Person way the right to use use, develop or occupy the Owned Real Propertyalter, and there are no outstanding options, rights of first offer all or rights of first refusal to purchase such Owned Real Property.
(b) Except for any Excluded Assets and for any assets being transferred by Seller pursuant to the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all part of the material real Corporation's leasehold property interests used or held for use by Seller in connection with the Transferred Business and necessary to conduct the Transferred Business in all material respects as conducted on the date of this Agreement and, except to the extent permitted by Section 7.1, as of the Effective Time, and (ii) the Acquired Assets include the material property, plant and equipment used by Seller in the VA Distribution Business in the Transferred Territory (other than as expressly contemplated hereby).
(c) Except as set forth on Schedule 5.8(c), Seller has not received written notice from any Person within three years prior to the date of this Agreement asserting that Seller does not have the right, as a result of title defects or title failures, to use or occupy any portion of the Owned Real Property or lands covered by the Transferred Easements, other than those notices that which would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(dc) The buildings on There has not been since the Owned Real Property are in good operating condition relative to their age Financial Statement Date and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal Property, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices.
(e) No condemnation or eminent domain proceeding against any part of the Owned Real Property or the Transferred Easements is pending or, will not be prior to the Knowledge of SellerClosing Date, threatenedany sale, other than such proceedings that would not individuallylease, or in any other disposition or distribution by the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge Corporation of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts of the Owned Real Property or any of the Transferred Easements.
(g) All of the Inventories included as Acquired Assets consist of a qualityits assets or properties, and are not more than the quantitynow or hereafter owned by it, reasonably expected to be usable except transactions in the ordinary and regular course of business or as otherwise consented to by Purchaser. After the Closing, Purchaser will own, or have the unrestricted right to use all properties and assets that are currently used in connection with the Corporation's business.
Appears in 1 contract
Title and Related Matters. (a) Seller has good, valid and marketable title to the Acquired Assets free and clear of all Encumbrances other than the Permitted Encumbrances and those Encumbrances that are to be released at or prior to Closing. Except as set forth in Schedule 5.8(a)2.1l( a) attached hereto, Seller the Corporation has not good and marketable title to all real and personal, tangible and intangible, property and other assets reflected in the Financial Statements or acquired after the Financial Statement Date, free and clear of all Liens, except Permitted Liens. All properties used in the Corporation's business operations for the periods covered by the Financial Statements are reflected in the Financial Statements, except as to those assets that are leased. Schedule 2.11(b) attached hereto sets forth a complete and accurate summary of all leased or otherwise granted assets that have annual rental payments in excess of $12,000, describing the expiration date of such lease, the name of the lessor, the annual rental payment and whether a consent is required from the lessor to any Person consummate the right to use or occupy the Owned Real Property, and there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Propertytransactions contemplated hereby.
(b) Except for All the Corporation's leases are in full force and effect, and valid and enforceable in accordance with their respective terms. The Corporation has not received any Excluded Assets notice of any, and for there exists no event of default or event which constitutes or would constitute (with notice or lapse of time or both) a default by the Corporation or any assets being transferred by Seller pursuant other Person under any lease. All rent and other amounts due and payable with respect to the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all of the material real property interests used or held for use by Seller in connection with the Transferred Business and necessary to conduct the Transferred Business in all material respects as conducted on Corporation's leases have been paid through the date of this Agreement andand all rent and other amounts due and payable with respect to the Corporation's leases that are due and payable on or prior to the Closing Date will have been paid prior to the Closing Date. All lessors under the Corporation's real property leases have consented (where such consent is necessary) or prior to the Closing will have consented (where such consent is necessary) to the consummation of the transactions contemplated by this Agreement without requiring material modification in the rights or obligations thereunder. The Corporation has received no written notice that the landlord with respect to any real property lease would refuse to renew such lease upon expiration of the period thereof upon substantially the same terms, except to the extent permitted by Section 7.1, as of the Effective Time, and (ii) the Acquired Assets include the material property, plant and equipment used by Seller in the VA Distribution Business in the Transferred Territory (other than as expressly contemplated hereby)for rent increases consistent with past experience or market rentals.
(c) Except None of the assets belonging to the Corporation is or will be on the Closing Date subject to any (i) Contracts of sale or lease except as set forth on in Schedule 5.8(c)2.11(c) attached hereto, Seller has not received written notice from any Person within three years prior to except Contracts for the date sale of this Agreement asserting that Seller does not have the right, as a result of title defects or title failures, to use or occupy any portion of the Owned Real Property or lands covered by the Transferred Easements, other than those notices that would not individually, or inventory in the aggregateordinary and regular course of business or (ii) Liens, reasonably be expected to have a Material Adverse Effectexcept for Permitted Liens and the Liens set forth in Schedule 2.11 (c) attached hereto.
(d) The buildings on There has not been since the Owned Real Property are in good operating condition relative to their age Financial Statement Date and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal Property, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices.
(e) No condemnation or eminent domain proceeding against any part of the Owned Real Property or the Transferred Easements is pending or, will not be prior to the Knowledge of SellerClosing Date, threatenedany sale, other than such proceedings that would not individuallylease, or in any other disposition or distribution by the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge Corporation of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts of the Owned Real Property or any of the Transferred Easements.
(g) All of the Inventories included as Acquired Assets consist of a qualityits assets or properties, and are not more than the quantitynow or hereafter owned by it, reasonably expected to be usable except transactions in the ordinary and regular course of businessbusiness or as otherwise consented to by the Purchaser. Immediately after the Closing, the Purchaser will own, or have the unrestricted right to use, all properties and assets that are used (or necessary) in connection with the Corporation's business on the same economic basis as before the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Synthesis Energy Systems Inc)
Title and Related Matters. (ai) Seller has good, valid and marketable title to the Acquired Assets free and clear of all Encumbrances other than the Permitted Encumbrances and those Encumbrances that are to be released at or prior to Closing. Except as set forth in Schedule 5.8(a)3.1(o) hereto, Seller the Company has and as of the Closing Date will have good and marketable title to all real and personal property and other assets reflected in the Financial Statements or acquired after the Financial Statement Date, free and clear of all Liens, except Permitted Liens. All properties used in the Company's business operations as of the Financial Statement Date are reflected in the Financial Statements and are reflected therein in accordance with and to the extent required by GAAP, except as to those assets which are leased. There has not leased been since the Financial Statement Date and will not be prior to the Closing Date, any sale, lease, or any other disposition or distribution by the Company of any of its assets or properties, now or hereafter owned by it, except transactions in the ordinary and regular course of business or as otherwise granted consented to any Person by the Purchaser. After the Closing, the Purchaser will own, or have the unrestricted right to use or occupy the Owned Real Property, all properties and there assets that are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property.
(b) Except for any Excluded Assets and for any assets being transferred by Seller pursuant to the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all of the material real property interests currently used or held for use by Seller in connection with the Transferred Business Company's business.
(1) All the Company's leases are in full force and necessary effect, and valid and enforceable in accordance with their respective terms. The Company has not received any notice of any, and to conduct the Transferred Business in all material respects as conducted on best knowledge of the Company there exists no event of default or event which constitutes or would constitute (with notice or lapse of time or both) a default by the Company or any other person under any lease.
(2) All rent and other amounts due and payable with respect to the Company's leases have been paid through the date of this Agreement and, except and all rent and other amounts due and payable with respect to the extent permitted by Section 7.1, as of Company's leases which are due and payable on or prior to the Effective Time, and (ii) Closing Date will have been paid prior to the Acquired Assets include the material property, plant and equipment used by Seller in the VA Distribution Business in the Transferred Territory (other than as expressly contemplated hereby)Closing Date.
(c3) All lessors under the Company's real property leases have consented (where such consent is necessary) or prior to Closing will have consented (where such consent is necessary) to the consummation of the transactions contemplated by this Agreement without requiring material modification in the rights or obligations thereunder.
(4) The Company has received no written notice that the landlord with respect to any real property lease would refuse to renew such lease upon expiration of the period thereof upon substantially the same terms, except for rent increases consistent with past experience or market rentals.
(ii) Except as set forth on in Schedule 5.8(c)3.1(o) hereto, Seller has not received written notice from any Person the buildings, structures and improvements included within three years prior to the date of this Agreement asserting that Seller does not have the right, as a result of title defects or title failures, to use or occupy any portion of the Owned Real Property or lands covered real property owned by the Transferred EasementsCompany (collectively, the "Improvements") comply in all material respects with all applicable restrictions, building ordinances and zoning ordinances and all regulations, and no material alteration, repair, improvement or other than those notices that would not individuallywork which could give rise to a Lien has been performed in respect to such Improvements within the last 120 days. The Improvements and the mechanical systems situated therein, or in including without limitation the aggregateheating, reasonably be expected to have a Material Adverse Effect.
(d) The buildings on the Owned Real Property electrical, air conditioning and plumbing systems, are in good operating condition relative to their age and use repair, ordinary wear and have been maintained tear excepted, and are adequate and suitable for the purposes for which they are presently being used, and the roof of each Improvement is in accordance with Good Utility Practicessatisfactory condition and is not in need of current repair. The Tangible Personal Propertyreal property owned by the Company and its continued use, Inventories occupancy and Distribution Facilities are operation as currently used, occupied and operated does not constitute a nonconforming use under any regulation or order affecting the real property (other than possible set back violations, none of which will have a material adverse effect on the Company's real property or its continued use, occupancy and operation as currently used, occupied and operated), and the continued existence, use, occupancy and operation of each Improvement, and the right and ability to repair and/or rebuild such Improvements in good operating condition relative the event of casualty, is not dependent on any special permit, exception, approval or variance. There is no pending, and to their age and use and have been maintained in accordance with Good Utility Practices.
(e) No condemnation the best knowledge of the Company, there is no threatened or proposed proceeding or governmental action to modify the zoning classification of, or to take by the power of eminent domain proceeding against (or to purchase in lieu thereof), or to classify as a landmark, or to impose special assessments on, or otherwise to take or restrict in any way the right to use, develop or alter, all or any part of the Owned Real Property or the Transferred Easements is pending or, to the Knowledge of Seller, threatened, other than such proceedings that Company's real property which would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge of Seller, (i) there material adverse effect. There are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts of the Owned Real Property or encroachments upon any of the Transferred Easements.
(g) All Company's real property, and no portion of any Improvement owned by the Company, encroaches upon any property not included within the Company's real property or upon the area of any easement affecting the Company's real property. Each Improvement has direct access, adequate for the operation of the Inventories included as Acquired Assets consist business of a qualitythe Company, and are not more than the quantity, reasonably expected to be usable in the ordinary course course, to a public street adjoining the Company's real property on which such Improvement is situated, and no existing way of businessaccess to any Improvement crosses or encroaches upon any property or property interest not owned by the Company.
Appears in 1 contract
Samples: Merger Agreement (Answer Think Consulting Group Inc)
Title and Related Matters. (a) Seller has good, valid CVI and each of the CVI Subsidiaries have good and marketable title to all their respective properties, interests in properties and assets, real and personal, reflected on the Acquired Assets free and clear of all Encumbrances other than the Permitted Encumbrances and those Encumbrances that are to be released at CVI May Balance Sheet or prior to Closing. Except as set forth in Schedule 5.8(a), Seller has not leased or otherwise granted to any Person the right to use or occupy the Owned Real Property, and there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property.
(b) Except for any Excluded Assets and for any assets being transferred by Seller pursuant to the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all of the material real property interests used or held for use by Seller in connection with the Transferred Business and necessary to conduct the Transferred Business in all material respects as conducted on acquired after the date of this Agreement andsuch balance sheet (except properties, except to the extent permitted by Section 7.1, as interests in properties and assets sold or otherwise disposed of the Effective Time, and (ii) the Acquired Assets include the material property, plant and equipment used by Seller in the VA Distribution Business in the Transferred Territory (other than as expressly contemplated hereby).
(c) Except as set forth on Schedule 5.8(c), Seller has not received written notice from any Person within three years prior to since the date of this Agreement asserting that Seller does not have the right, as a result of title defects or title failures, to use or occupy any portion of the Owned Real Property or lands covered by the Transferred Easements, other than those notices that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) The buildings on the Owned Real Property are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal Property, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices.
(e) No condemnation or eminent domain proceeding against any part of the Owned Real Property or the Transferred Easements is pending or, to the Knowledge of Seller, threatened, other than such proceedings that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts of the Owned Real Property or any of the Transferred Easements.
(g) All of the Inventories included as Acquired Assets consist of a quality, and are not more than the quantity, reasonably expected to be usable balance sheet in the ordinary course of business), free and clear of all Encumbrances, except for purchase money security interests and the lien of current taxes not yet due and payable.
(b) CVI and the CVI Subsidiaries own or lease all equipment and all other tangible assets and properties which are material to the conduct of their respective businesses as currently conducted. The CVI Disclosure Schedule includes a complete and accurate list describing and specifying the location of all of the equipment and other tangible assets and properties owned by CVI and the CVI Subsidiaries or used in their businesses and having an original cost in excess of $2,000. To the knowledge of CVI and the Indemnifying CVI Securityholders, all of such equipment and tangible assets and properties is in good operating condition and repair, subject to reasonable wear and tear.
(c) The CVI Disclosure Schedule includes a complete and accurate list of each lease under which CVI or any CVI Subsidiary is the lessor, sublessor, lessee or sublessee of any equipment or other tangible assets or properties (including any related master leases) (the "CVI Equipment Leases"), describing each such lease and the type and location of the property which is the subject thereof. True and correct copies of all CVI Equipment Leases have been provided to counsel for Raytel. All CVI Equipment Leases are in full force and effect and valid, binding and enforceable in accordance with their terms.
(d) Neither CVI nor any CVI Subsidiary owns any real property in fee simple. The CVI Disclosure Schedule includes a complete and accurate list of each real property lease under which CVI or any CVI Subsidiary is the lessee, sublessee or sublessor of any real property (including any related master leases) (the "CVI Real Property Leases"), describing each such lease and the location of the property which is the subject thereof. True and correct copies of all CVI Real Property Leases have been provided to counsel for Raytel. All CVI Real Property Leases are in full force and effect and valid, binding and enforceable in accordance with their terms.
Appears in 1 contract
Title and Related Matters. (a) Seller has good, valid and marketable title to the Acquired Assets free and clear of all Encumbrances other than the Permitted Encumbrances and those Encumbrances that are to be released at or prior to Closing. Except as set forth in Schedule 5.8(a)2.9(a) hereto, each Seller has not good and marketable title to all real and personal, tangible and intangible, property and other assets reflected in the Financial Statements or acquired after the Financial Statement Date, free and clear of all Liens, Claims and Orders except Permitted Liens. All properties used by the Sellers in the Business as of the Financial Statement Date are reflected in the Financial Statements in accordance with and to the extent required by GAAP, except as to those assets that are leased or otherwise granted and those assets set forth in Schedule 2.9(b) hereto that are to any Person be utilized in connection with the right to use or occupy performance of the Owned Real Property, and there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real PropertySellers’ obligations under the Management Services Agreement.
(b) Except for All the leases that are part of the Acquired Assets are in full force and effect, and valid and enforceable in accordance with their respective terms. No Seller has received any Excluded Assets notice of any, and for there exists no event of default or event that constitutes or would constitute (with notice or lapse of time or both) a default by the Seller or any assets being transferred by Seller pursuant other Person under any lease. All rent and other amounts due and payable with respect to the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all leases that are part of the material real property interests used or held for use by Seller in connection with the Transferred Business and necessary to conduct the Transferred Business in all material respects as conducted on Acquired Assets have been paid through the date of this Agreement and, except and all rent and other amounts due and payable with respect to the extent permitted by Section 7.1, as leases that are part of the Effective Time, and (ii) the Acquired Assets include that are due and payable on or prior to the material propertyClosing Date will have been paid prior to the Closing Date. No Seller has received written notice that the landlord with respect to any real property lease that is part of the Acquired Assets would refuse to renew such lease upon expiration of the period thereof upon substantially the same terms, plant and equipment used by Seller in the VA Distribution Business in the Transferred Territory (other than as expressly contemplated hereby)except for rent increases consistent with past experience or market rentals.
(c) Except Schedule 2.9(c) hereto sets forth a complete and accurate summary of all leased assets that have annual rental payments in excess of $25,000 describing the expiration date of such lease, the name of the lessor, the annual rental payment and whether a consent is required from the lessor to consummate the transactions contemplated hereby. None of the Acquired Assets is or will be on the Closing Date subject to any (i) Contracts of sale or lease (except as disclosed in Schedule 2.9(c)), except Contracts for the sale of inventory in the ordinary and regular course of business or (ii) Liens, except for Permitted Liens and the Liens set forth on in Schedule 5.8(c), Seller has not received written notice from any Person within three years prior to the date of this Agreement asserting that Seller does not have the right, as a result of title defects or title failures, to use or occupy any portion of the Owned Real Property or lands covered by the Transferred Easements, other than those notices that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect2.9(d) hereto.
(d) The buildings on There has not been since the Owned Real Property are in good operating condition relative to their age Financial Statement Date, and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal Property, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices.
(e) No condemnation or eminent domain proceeding against any part of the Owned Real Property or the Transferred Easements is pending or, will not be prior to the Knowledge of SellerClosing Date, threatenedany sale, other than such proceedings that would not individuallylease, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge any other disposition or distribution by any Seller of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts of the Owned Real Property or any of the Transferred Easements.
(g) All of the Inventories included as Acquired Assets consist of a qualityAssets, and are not more than the quantitynow or hereafter owned by it, reasonably expected to be usable except transactions in the ordinary and regular course of businessbusiness or as otherwise consented to by the Purchaser. Immediately after the Closing, the Purchaser will own, or have the unrestricted right to use, all properties and assets that are used (or necessary) in connection with the Business on the same economic basis as before the Closing, except as to those assets set forth in Schedule 2.9(b) hereto that shall be utilized in connection with the performance of the Sellers’ obligations under the Management Services Agreement.
Appears in 1 contract
Title and Related Matters. (a) Seller Except as set forth in SCHEDULE 2.9(A) hereto, each of the Sellers has good, valid and marketable title to all personal, tangible and intangible, property and other assets used in the Business or otherwise reflected in the Financial Statements or acquired after the Financial Statement Date to the extent constituting Acquired Assets Assets, free and clear of all Encumbrances Liens, Claims and Orders, except Permitted Liens. All of the Acquired Assets that are tangible property are in good condition and repair, ordinary wear and tear excepted and are free from defects and damages. At the Closing, the Sellers shall convey to Acquisition, pursuant to Bankruptcy Court order acceptable to the Purchasers, good and marketable title to the Acquired Assets, free and clear of all Liens and Claims, which Acquired Assets constitute all of the tangible and intangible assets (other than Contracts not being assumed by the Permitted Encumbrances Purchasers) used in connection with the Business. All properties used in the Business as of the Financial Statement Date are reflected in the Financial Statements in accordance with and to the extent required by GAAP, except as to those Encumbrances assets that are leased. SCHEDULE 2.9(B) hereto sets forth a complete and accurate summary of all leased assets related to be released at the Business that have annual rental payments in excess of $50,000 (the "MATERIAL LEASES").
(b) All of the Material Leases are in full force and effect, and valid and enforceable in accordance with their respective terms. Except defaults that would result from the Chapter 11 Case, there exists no event of default or event which constitutes or would constitute (with notice or lapse of time or both) a default by any of the Sellers or any other Person under any such Material Lease. All rent and other amounts due and payable with respect to the leases related to the Business have been paid through the date of this Agreement and all rent and other amounts due and payable with respect to the leases that are due and payable on or prior to Closingthe Closing Date will have been paid prior to the Closing Date except as set forth in SCHEDULE 2.9(B) hereto.
(c) None of the Acquired Assets is or will be on the Closing Date subject to any (i) Contracts of sale or lease, except Contracts for the sale of inventory in the ordinary and regular course of business or (ii) Liens.
(d) Except as set forth in SCHEDULE 2.9(D) hereto, the buildings, structures and improvements included within the real property (collectively, the "IMPROVEMENTS") comply with all applicable Regulations, including building and zoning ordinances, and no alteration, repair, improvement or other work that could give rise to a Lien has been performed in respect to such Improvements within the last 120 days. Except as set forth in Schedule 5.8(a)SCHEDULE 2.9(D) hereto, Seller has not leased or otherwise granted to any Person the right to use or occupy Improvements and the Owned Real Propertymechanical systems situated therein, including without limitation the heating, electrical, air conditioning and plumbing systems, are in good operating condition and repair, ordinary wear and tear excepted, and there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property.
(b) Except adequate and suitable for any Excluded Assets and for any assets being transferred by Seller pursuant to the Sister Purchase Agreement (purposes for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder)they are presently being used, (i) the Owned Real Property and the Transferred Easements represent all roof of the material each Improvement is in satisfactory condition and is not in need of current repair or replacement. The real property interests used or held for use by Seller and its continued use, occupancy and operation as currently used, occupied and operated in connection with the Transferred Business and necessary to conduct does not constitute a nonconforming use under any Regulation or Order affecting the Transferred Business in all material respects as conducted on the date of this Agreement and, except to the extent permitted by Section 7.1, as of the Effective Time, and (ii) the Acquired Assets include the material property, plant and equipment used by Seller in the VA Distribution Business in the Transferred Territory real property (other than possible set-back violations, none of which will have a Material Adverse Effect on such real property or its continued use, occupancy and operation as expressly contemplated hereby).
(c) Except as set forth on Schedule 5.8(ccurrently used, occupied and operated), Seller has and the continued existence, use, occupancy and operation of each Improvement, and the right and ability to repair and/or rebuild such Improvements in the event of casualty, is not received written notice from dependent on any Person within three years prior special Permit, exception, approval or variance. There is no pending, threatened or proposed proceeding or governmental action to modify the date zoning classification of, or to take by the power of this Agreement asserting that Seller does not have the righteminent domain (or to purchase in lieu thereof), or to classify as a result of title defects landmark, or title failuresto impose special assessments on, or otherwise to use take or occupy restrict in any portion way the right to use, develop or alter, all or any part of the Owned Real Property or lands covered by real property used in connection with the Transferred Easements, other than those notices that Business which would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) The buildings . There are no encroachments upon any of the real property used in connection with the Business, and no portion of any Improvement, encroaches upon any property not included within the real property used in connection with the Business or upon the area of any easement affecting such real property. Each Improvement has direct access, adequate for the operation of the Business in the ordinary course, to a public street adjoining the real property used in connection with the Business on which such Improvement is situated, and no existing way of access to any Improvement crosses or encroaches upon any property or property interest not used in connection with the Owned Real Property are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal Property, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility PracticesBusiness.
(e) No condemnation or eminent domain proceeding against There has not been since the Financial Statement Date, any part of the Owned Real Property or the Transferred Easements is pending orsale, to the Knowledge of Seller, threatened, other than such proceedings that would not individuallylease, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge any other disposition or distribution of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts of the Owned Real Property or any of the Transferred Easements.
(g) All Acquired Assets, except for sales of the Inventories included as Acquired Assets consist of a quality, and are not more than the quantity, reasonably expected to be usable inventory in the ordinary course of business, now or hereafter owned by the Sellers, except as otherwise consented to by the Purchaser.
Appears in 1 contract
Title and Related Matters. (a) Seller has good, valid and marketable title to the Acquired Assets free and clear of all Encumbrances other than the Permitted Encumbrances and those Encumbrances that are to be released at or prior to Closing. Except as set forth in Schedule 5.8(a)2.1l(a) attached hereto, Seller the Corporation has not good and marketable title to all real and personal, tangible and intangible, property and other assets reflected in the Financial Statements or acquired after the Financial Statement Date, free and clear of all Liens, except Permitted Liens. All properties used in the Corporation’s business operations for the periods covered by the Financial Statements are reflected in the Financial Statements, except as to those assets that are leased. Schedule 2.11(b) attached hereto sets forth a complete and accurate summary of all leased or otherwise granted assets that have annual rental payments in excess of $12,000, describing the expiration date of such lease, the name of the lessor, the annual rental payment and whether a consent is required from the lessor to any Person consummate the right to use or occupy the Owned Real Property, and there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Propertytransactions contemplated hereby.
(b) Except for All the Corporation’s leases are in full force and effect, and valid and enforceable in accordance with their respective terms. The Corporation has not received any Excluded Assets notice of any, and for there exists no event of default or event which constitutes or would constitute (with notice or lapse of time or both) a default by the Corporation or any assets being transferred by Seller pursuant other Person under any lease. All rent and other amounts due and payable with respect to the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all of the material real property interests used or held for use by Seller in connection with the Transferred Business and necessary to conduct the Transferred Business in all material respects as conducted on Corporation’s leases have been paid through the date of this Agreement andand all rent and other amounts due and payable with respect to the Corporation’s leases that are due and payable on or prior to the Closing Date will have been paid prior to the Closing Date. All lessors under the Corporation’s real property leases have consented (where such consent is necessary) or prior to the Closing will have consented (where such consent is necessary) to the consummation of the transactions contemplated by this Agreement without requiring material modification in the rights or obligations thereunder. The Corporation has received no written notice that the landlord with respect to any real property lease would refuse to renew such lease upon expiration of the period thereof upon substantially the same terms, except to the extent permitted by Section 7.1, as of the Effective Time, and (ii) the Acquired Assets include the material property, plant and equipment used by Seller in the VA Distribution Business in the Transferred Territory (other than as expressly contemplated hereby)for rent increases consistent with past experience or market rentals.
(c) Except None of the assets belonging to the Corporation is or will be on the Closing Date subject to any (i) Contracts of sale or lease except as set forth on in Schedule 5.8(c)2.11(c) attached hereto, Seller has not received written notice from any Person within three years prior to except Contracts for the date sale of this Agreement asserting that Seller does not have the right, as a result of title defects or title failures, to use or occupy any portion of the Owned Real Property or lands covered by the Transferred Easements, other than those notices that would not individually, or inventory in the aggregateordinary and regular course of business or (ii) Liens, reasonably be expected to have a Material Adverse Effectexcept for Permitted Liens and the Liens set forth in Schedule 2.11(c) attached hereto.
(d) The buildings on There has not been since the Owned Real Property are in good operating condition relative to their age Financial Statement Date and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal Property, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices.
(e) No condemnation or eminent domain proceeding against any part of the Owned Real Property or the Transferred Easements is pending or, will not be prior to the Knowledge of SellerClosing Date, threatenedany sale, other than such proceedings that would not individuallylease, or in any other disposition or distribution by the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge Corporation of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts of the Owned Real Property or any of the Transferred Easements.
(g) All of the Inventories included as Acquired Assets consist of a qualityits assets or properties, and are not more than the quantitynow or hereafter owned by it, reasonably expected to be usable except transactions in the ordinary and regular course of businessbusiness or as otherwise consented to by the Purchaser. Immediately after the Closing, the Purchaser will own, or have the unrestricted right to use, all properties and assets that are used (or necessary) in connection with the Corporation’s business on the same economic basis as before the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Synthesis Energy Systems Inc)
Title and Related Matters. (a) Seller has good, valid and marketable title to the Acquired Assets free and clear of all Encumbrances other than the Permitted Encumbrances and those Encumbrances that are to be released at or prior to Closing. Except as set forth in Schedule 5.8(a5.9(a) hereto and except for assets of Seller sold, used or disposed of in the ordinary course of the Business since the Financial Statement Date, (i) Seller has indefeasible title to all real and personal, tangible and intangible, property and other assets reflected in the Unaudited Financial Statements as owned by Seller or acquired by Seller after the Financial Statement Date, including the Purchased Assets, free and clear of all Liens, except Permitted Liens and (ii) all assets set forth on the Unaudited Financial Statements or acquired by Seller after the Financial Statement Date are free from obvious defects, have been maintained in accordance with Seller’s customary practices, are in good operating condition and repair (subject to normal wear and tear), and suitable for the purposes for which they presently are used and presently are proposed to be used. Schedule 5.9(a) hereto sets forth a complete and accurate summary of all Operating Leases of tangible personal property to which Seller has not leased or otherwise granted is a party that have annual rental payments in excess of $5,000, describing the expiration date of such lease, the name of the lessor, the annual rental payment and whether a consent is required from the lessor to any Person consummate the right to use or occupy the Owned Real Property, and there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Propertytransactions contemplated hereby.
(b) Except for any Excluded Assets All Operating Leases of Seller are in full force and for any assets being transferred by Seller pursuant to the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all of the material real property interests used or held for use by Seller in connection with the Transferred Business and necessary to conduct the Transferred Business in all material respects as conducted on the date of this Agreement and, except to the extent permitted by Section 7.1, as of the Effective Timeeffect, and (ii) the Acquired Assets include the material property, plant valid and equipment used by Seller enforceable in the VA Distribution Business in the Transferred Territory (other than as expressly contemplated hereby).
(c) Except as set forth on Schedule 5.8(c), accordance with their respective terms. Seller has not received any written notice from of any event of default or event which constitutes or would constitute (with notice or lapse of time or both) a material default by Seller or any other Person within three years under any Operating Lease of Seller. All rent and other amounts due and payable on or prior to the date of this Agreement asserting with respect to Seller’s Operating Leases have been paid. Seller has not received any written notice that Seller does not have the right, as a result of title defects or title failures, landlord with respect to use or occupy any portion Real Property Lease would refuse to renew such lease upon expiration of the Owned Real Property period thereof upon substantially the same terms, except for rent increases consistent with past experience or lands covered by market rentals.
(c) None of the Transferred EasementsPurchased Assets is subject to any Contracts of sale or lease except as set forth in Schedule 5.9(c), other than those notices that would not individually, or except Contracts for the sale of inventory in the aggregate, reasonably be expected to have a Material Adverse Effectordinary and regular course of the Business.
(d) The buildings on Except as set forth in Schedule 5.29, there has not been since the Owned Real Property are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal PropertyFinancial Statement Date any sale, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices.
(e) No condemnation or eminent domain proceeding against any part of the Owned Real Property or the Transferred Easements is pending or, to the Knowledge of Seller, threatened, other than such proceedings that would not individuallylease, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge any other disposition or distribution by Seller of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts of the Owned Real Property or any of the Transferred Easements.
(g) All of the Inventories included as Acquired Assets consist of a qualityits assets or properties now owned by it, and are not more than the quantity, reasonably expected to be usable except transactions in the ordinary and regular course of businessthe Business.
Appears in 1 contract
Title and Related Matters. (a) Seller Except as set forth in SCHEDULE 2.14(a) hereto, the Corporation has good, good and valid and marketable title to all its real and personal property and other assets reflected in the Acquired Assets Financial Statements or acquired after the Financial Statement Date, free and clear of all Encumbrances Liens, except Permitted Liens. All properties used in the Corporation's business operations as of the Financial Statement Date are reflected in the Financial Statements and are reflected therein in accordance with and to the extent required by GAAP, except as to those assets which are leased and except as otherwise noted in SCHEDULE 2.9(a). SCHEDULE 2.14(b) hereto sets forth a complete and accurate list of all such leased assets which have annual rental payments in excess of $6,000 (including the expiration date of such lease, the name of the lessor, the annual or monthly rental payment and whether a consent is required from the lessor to consummate the transactions contemplated hereby).
(i) All the Corporation's leases are in full force and effect, and valid and enforceable in all material respects in accordance with their respective terms. The Corporation has not received any notice of any, and there exists no event of default or event which constitutes or would constitute (with notice or lapse of time or both) a default by the Corporation or any other than Person under any lease.
(ii) All rent and other amounts due and payable with respect to the Permitted Encumbrances Corporation's leases have been paid through the date of this Agreement and those Encumbrances that all rent and other amounts due and payable with respect to the Corporation's leases which are to be released at due and payable on or prior to Closing. Except as set forth in Schedule 5.8(a), Seller the Closing Date will have been paid on or prior to the Closing Date.
(iii) The Corporation has not leased or otherwise granted received no written notice that the landlord with respect to any Person currently existing real property lease would refuse to renew such lease upon expiration of the right to use period thereof upon substantially the same terms, except for rent increases consistent with past experience or occupy the Owned Real Property, and there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Propertymarket rentals.
(b) Except for None of the assets owned by the Corporation is or will be on the Closing Date subject to any Excluded Assets and for any assets being transferred by Seller pursuant to the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all Contracts of the material real property interests used sale or held for use by Seller lease (except as disclosed in connection with the Transferred Business and necessary to conduct the Transferred Business in all material respects as conducted on the date of this Agreement andSCHEDULE 2.14(b)), except to Contracts for the extent permitted by Section 7.1, as sale of inventory in the Effective Time, ordinary and regular course of business or (ii) Liens, except for Permitted Liens and the Acquired Assets include the material property, plant and equipment used by Seller Liens set forth in the VA Distribution Business in the Transferred Territory (other than as expressly contemplated hereby)SCHEDULE 2.14(c) hereto.
(c) Except as set forth on Schedule 5.8(cSCHEDULES 2.11 or 2.14(c), Seller there has not received written notice from any Person within three years been since the Financial Statement Date and will not be prior to the date of this Agreement asserting that Seller does not have the rightClosing Date, as a result of title defects any sale, lease, dividend or title failures, to use any other disposition or occupy any portion of the Owned Real Property or lands covered distribution by the Transferred Easements, other than those notices that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) The buildings on the Owned Real Property are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal Property, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices.
(e) No condemnation or eminent domain proceeding against any part Corporation of the Owned Real Property or the Transferred Easements is pending or, to the Knowledge of Seller, threatened, other than such proceedings that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts of the Owned Real Property or any of the Transferred Easements.
(g) All of the Inventories included as Acquired Assets consist of a qualityits assets or properties, and are not more than the quantitynow or hereafter owned by it, reasonably expected to be usable except transactions in the ordinary and regular course of business or as otherwise previously consented to in writing by the Purchaser; provided that transactions in the ordinary and regular course of business shall not be deemed to include any dividends or other distributions in respect of a Corporation's capital stock. Immediately after the Closing, the Corporation will continue to have the right to use all of its properties and assets as they are currently used in connection with the Corporation's business.
Appears in 1 contract
Samples: Stock Purchase Agreement (Lets Talk Cellular & Wireless Inc)
Title and Related Matters. (a) The Seller has good, valid good and marketable title to the all Acquired Assets Assets, free and clear of all Encumbrances other than Liens, except (i) Permitted Liens and (ii) the Senior Lender Liens. Section 2.8(b) of the Disclosure Schedule hereto sets forth a complete and accurate list of all leased assets that have annual rental payments in excess of $20,000. At the Closing, the Seller shall deliver good and marketable title to all of the Acquired Assets, free and clear of all Liens except for the Permitted Encumbrances and those Encumbrances that are to be released at or prior to Closing. Except as set forth in Schedule 5.8(a), Seller has not leased or otherwise granted to any Person the right to use or occupy the Owned Real Property, and there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real PropertyLiens.
(b) Except for All the leases that are part of the Acquired Assets are in full force and effect. The Seller has not received any Excluded Assets notice of any, and for any assets being transferred there exists no event of default or event which constitutes or would constitute (with notice or lapse of time or both) a default by the Seller pursuant or any, to the Sister Purchase Agreement (for which Buyer may elect or need Seller's Knowledge, other Person under any lease. All rent and other amounts due and payable with respect to acquire joint use arrangements with the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all leases that are part of the material real property interests used or held for use by Seller in connection with the Transferred Business and necessary to conduct the Transferred Business in all material respects as conducted on Acquired Assets have been paid through the date of this Agreement and, except and all rent and other amounts due and payable with respect to the extent permitted by Section 7.1, as leases that are part of the Effective Time, and (ii) the Acquired Assets include that are due and payable on or prior to the material property, plant and equipment used by Seller in Closing Date will have been paid prior to the VA Distribution Business in the Transferred Territory (other than as expressly contemplated hereby)Closing Date.
(c) Except The buildings, structures and improvements or real property included within the Acquired Assets (collectively, the "Improvements") comply in all material respects with all applicable restrictions, building ordinances and zoning ordinances and all Laws. The Improvements are in good operating condition and repair, ordinary wear and tear excepted, and are adequate and suitable for the purposes for which they are presently being used. The real property included in the Acquired Assets and its continued use, occupancy and operation as set forth on Schedule 5.8(c)currently used, Seller has not received written notice from any Person within three years prior to the date of this Agreement asserting that Seller occupied and operated does not have constitute a nonconforming use under any Law or Order affecting the right, as a result of title defects or title failures, to use or occupy any portion of the Owned Real Property or lands covered by the Transferred Easements, real property (other than those notices that would not individuallypossible set back violations, or in the aggregate, reasonably be expected to none of which will have a Material Adverse EffectEffect or the continued use, occupancy and operation of the real property included in the Acquired Assets as currently used, occupied and operated), and the continued existence, use, occupancy and operation of each Improvement, and the right and ability to repair and/or rebuild such Improvements in the event of casualty, is not dependent on any special Permit, exception, approval or variance.
(d) The buildings on There has not been since the Owned Real Property are in good operating condition relative Balance Sheet Date and will not be prior to their age and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal Propertythe Closing Date, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices.
(e) No condemnation any sale, lease, or eminent domain proceeding against any part other disposition or distribution by the Seller of any of the Owned Real Property Acquired Assets, now or the Transferred Easements is pending orhereafter owned by it, to the Knowledge of Seller, threatened, other than such proceedings that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge of Seller, except for (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no special, general or other assessments pending, threatened against, or affecting any parts sales of the Owned Real Property or any of the Transferred Easements.
(g) All of the Inventories included as Acquired Assets consist of a quality, and are not more than the quantity, reasonably expected to be usable inventory in the ordinary course of business, (ii) sales or retirement of equipment no longer useful in the Business and (iii) transactions consented to by the Purchaser. After the Closing, the Purchaser will own, or have the unrestricted right to use, all properties and assets that are primarily used in connection with the Business subject to restrictions set forth in the License Agreement.
Appears in 1 contract
Samples: Credit Agreement (Agway Inc)
Title and Related Matters. (a) Seller has good, valid and marketable title to the Acquired Assets free and clear of all Encumbrances other than the Permitted Encumbrances and those Encumbrances that are to be released at or prior to Closing. Except as set forth in Schedule 5.8(a)3.11(a) attached hereto, Seller the Purchaser has not good and marketable title to all real and personal, tangible and intangible, property and other assets reflected in the Financial Statements or acquired after the Financial Statement Date, free and clear of all Liens, except Permitted Liens. All properties used in the Purchaser's business operations for the periods covered by the Financial Statements are reflected in the Financial Statements, except as to those assets that are leased. Schedule 3.11 (b) attached hereto sets forth a complete and accurate summary of all leased or otherwise granted assets that have annual rental payments in excess of $12,000, describing the expiration date of such lease, the name of the lessor, the annual rental payment and whether a consent is required from the lessor to any Person consummate the right to use or occupy the Owned Real Property, and there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Propertytransactions contemplated hereby.
(b) Except for All the Purchaser's leases are in full force and effect, and valid and enforceable in accordance with their respective terms. The Purchaser has not received any Excluded Assets notice of any, and for there exists no event of default or event which constitutes or would constitute (with notice or lapse of time or both) a default by the Purchaser or any assets being transferred by Seller pursuant other Person under any lease. All rent and other amounts due and payable with respect to the Sister Purchase Agreement (for which Buyer may elect or need to acquire joint use arrangements with the buyer thereunder), (i) the Owned Real Property and the Transferred Easements represent all of the material real property interests used or held for use by Seller in connection with the Transferred Business and necessary to conduct the Transferred Business in all material respects as conducted on Purchaser's leases have been paid through the date of this Agreement andand all rent and other amounts due and payable with respect to the Purchaser's leases that are due and payable on or prior to the Closing Date will have been paid prior to the Closing Date. All lessors under the Purchaser's real property leases have consented (where such consent is necessary) or prior to the Closing will have consented (where such consent is necessary) to the consummation of the transactions contemplated by this Agreement without requiring material modification in the rights or obligations thereunder. The Purchaser has received no written notice that the landlord with respect to any real property lease would refuse to renew such lease upon expiration of the period thereof upon substantially the same terms, except to the extent permitted by Section 7.1, as of the Effective Time, and (ii) the Acquired Assets include the material property, plant and equipment used by Seller in the VA Distribution Business in the Transferred Territory (other than as expressly contemplated hereby)for rent increases consistent with past experience or market rentals.
(c) Except None of the assets belonging to the Purchaser is or will be on the Closing Date subject to any (i) Contracts of sale or lease except as set forth on in Schedule 5.8(c)3.11(c) attached hereto, Seller has not received written notice from any Person within three years prior to except Contracts for the date sale of this Agreement asserting that Seller does not have the right, as a result of title defects or title failures, to use or occupy any portion of the Owned Real Property or lands covered by the Transferred Easements, other than those notices that would not individually, or inventory in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) The buildings on the Owned Real Property are in good operating condition relative to their age ordinary and use and have been maintained in accordance with Good Utility Practices. The Tangible Personal Property, Inventories and Distribution Facilities are in good operating condition relative to their age and use and have been maintained in accordance with Good Utility Practices.
(e) No condemnation regular course of business or eminent domain proceeding against any part of the Owned Real Property or the Transferred Easements is pending or, to the Knowledge of Seller, threatened, other than such proceedings that would not individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) To the Knowledge of Seller, (i) there are no public improvements that have been ordered to be made or that have not been previously assessed, and (ii) there are no specialLiens, general or other assessments pending, threatened against, or affecting any parts of except for Permitted Liens and the Owned Real Property or any of the Transferred EasementsLiens set forth in Schedule 3.11(d) attached hereto.
(g) All of the Inventories included as Acquired Assets consist of a quality, and are not more than the quantity, reasonably expected to be usable in the ordinary course of business.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Synthesis Energy Systems Inc)
