Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) of the Disclosure Schedules, the Company has not owned any Real Property. (b) The Company has a valid leasehold interest in all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”): (i) those items set forth in Section 4.09(b) of the Disclosure Schedules; (ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate procedures; (iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business; (iv) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that do not adversely affect the operation of the business at the Real Property; or (v) liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business; or (c) The real property at the addresses listed in Section 4.09(c) of the Disclosure Schedules constitutes all of the Real Property leased by the Company and lists, as of the date of this Agreement, all leases (including the relevant addresses and parties) for the Real Property (collectively, the “Leases”). The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer. (d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date. (e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost. (f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.
Appears in 1 contract
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) of the Disclosure Schedules, the Company has not owned any Real Property.
(b) The Company has title (and, in the case of owned Real Property, good and marketable fee simple) to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b4.09(a) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate procedures;
(iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business;
(iv) easements, rights of way, zoning ordinances and other similar encumbrances Encumbrances affecting leased Real Property that do not adversely affect the operation of the business at the Real Property; or;
(v) other than with respect to owned Real Property, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business; or
(cvi) The real property at the addresses listed in other imperfections of title or Encumbrances, if any, that have not had, and would not have, a Material Adverse Effect.
(b) Section 4.09(c4.09(b) of the Disclosure Schedules constitutes all lists the street address of the Real Property leased by the Company and lists, as each parcel of the date of this Agreement, all leases (including the relevant addresses and parties) for the Real Property (collectively, the “Leases”). The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting the owned Real Property. The Leases afford the Company peaceful and undisturbed possession of the does not lease any Real Property.
(c) The Real Property that is registered with the subject matter of each respective Lease. Except for corresponding registers and/or notaries (as applicable) and their description corresponds to the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyercharacteristics mentioned in said registers.
(d) Since The Company owns all of the first date buildings located on the Company occupied the Real Property, the Company has not received a notice that the owned Real Property is notfree and clear of all Encumbrances, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. except Permitted Encumbrances.
(e) The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon threatened Governmental Order affecting the ownership, alteration, use, occupancy or operation of the owned Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.
Appears in 1 contract
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) of the Disclosure Schedules, the Company has not owned any Real Property.
(b) The Company or Subsidiary, as applicable, has good and valid title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Annual Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b3.09(a) of the Disclosure Schedules;
(ii) liens Encumbrances for Taxes not yet due and payable delinquent or being contested in good faith by appropriate proceduresproceedings;
(iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business;
(iv) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that do not adversely affect the operation of the business at the Real Property; or;
(v) landlord’s liens in favor of any landlords under any Leases;
(vi) all matters disclosed on any survey, in any title policy or in any title report or commitment of the Real Property made available to Buyer prior to Closing;
(vii) liens caused or created by Buyer;
(viii) deposits or pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance or other social security legislation;
(ix) other than with respect to owned Real Property, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business; or
(cx) The real property at other imperfections of title or Encumbrances, if any, that do not materially detract from the addresses listed in use or value of such properties or assets.
(b) Section 4.09(c3.09(b) of the Disclosure Schedules constitutes all lists: (i) the street address of each parcel of owned Real Property; and (ii) the street address of each parcel of leased Real Property leased by the Company Property, and listsa list, as of the date of this Agreement, of all leases (including the relevant addresses and parties) for the each parcel of leased Real Property (collectively, the “Leases”), including the identification of the lessee and lessor thereunder. The Leases There are no condemnation or eminent domain proceedings with respect to all or any part of the owned Real Property as to which the Seller, the Company or Subsidiary has been served with process or other written notice or, to the Seller’s Knowledge, otherwise pending or threatened against the Seller, the Company or Subsidiary. Each Lease is legal, valid and binding enforceable against the Company or the Subsidiary, as applicable, and, to the Seller’s Knowledge, each other party thereto, and in full force and effect, except where the illegality, invalidity, unenforceability or ineffectiveness would not, individually or in the aggregate, be material. The Company is not in default a sublessor or grantor under any Lease. The Company has not received written notice sublease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any existing or pending condemnation proceedings affecting leases for the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on in Section 4.09(f3.09(b) of the Disclosure Schedules, each none of the Leases tangible personal property that is necessary for the operation of the Business is in possession of any Person other than the Company and Subleases are arm’s length transactions with unrelated third partiesSubsidiary.
Appears in 1 contract
Samples: Limited Liability Company Interest Purchase Agreement (Quanex Building Products CORP)
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) The Company Group has good and marketable (and, in the case of the Disclosure Schedules, the Company has not owned any Real Property.
(b, good and marketable fee simple) The Company has title to, or a valid leasehold and enforceable interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course Ordinary Course of business Business since the Balance Sheet Date. The assets owned and held by the Company Group comprise all of the assets, whether tangible or intangible, real or personal, developed for, related to, necessary for, or used in the conduct of the Company Group’s business as currently conducted. Each such tangible asset is free from material defects (patent and latent), has been maintained in accordance with Law and is in good operating condition and repair (subject to normal wear and tear). All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b3.10(a) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate proceduresprocedures and for which adequate reserves have been established in accordance with GAAP;
(iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business;
(iv) easements, rights of way, zoning ordinances and other similar encumbrances non-monetary Encumbrances affecting leased Real Property that do not adversely affect materially impair the operation value of or interfere with the business at the present uses and occupancy of such Real Property; or;
(viv) other than with respect to owned Real Property, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course Ordinary Course of businessBusiness; or
(cv) The real property at other imperfections of title or Encumbrances, if any, that are not material on an individual basis with respect to the addresses listed in applicable Real Property.
(b) Section 4.09(c3.10(b) of the Disclosure Schedules constitutes all lists: (i) the street address of each parcel of owned Real Property; and (ii) the street address of each parcel of leased Real Property leased by the Company Property, and listsa list, as of the date of this Agreement, of all leases (including the relevant addresses and parties) for the each parcel of leased Real Property (collectively, the “Leases”), including the identification of the lessee and lessor thereunder. The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings the only leases affecting the Real PropertyProperties. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to BuyerBuyer are true, correct and complete in all material respects.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.
Appears in 1 contract
Samples: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) of the Disclosure Schedules, Neither the Company has not owned nor any Acquired Company owns any Real Property.
(b) . The Company or an Acquired Company has a valid leasehold interest in all the leased Real Property Property, and good title in all of its right, title and valid title to interest in all tangible personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business consistent with past practice since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b3.10(a) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate proceduresfaith;
(iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business;
(iv) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that do not adversely affect the operation of the business at the Real Property; or;
(v) other than with respect to owned Real Property, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business; or
(cvi) The real property at the addresses listed in other imperfections of title or Encumbrances, if any that have not had, and would not have, an Material Adverse Effect.
(b) Section 4.09(c3.10(b) of the Disclosure Schedules constitutes all lists (i) the street address and name of the owner of each parcel of owned Real Property; (ii) the street address of each parcel of leased Real Property leased by the Company with annual lease payments in excess of $1,000,000 and listsa list, as of the date of this Agreement, of all leases (including the relevant addresses and parties) for the each parcel of leased Real Property (collectively, the “Leases”). The Leases are legal, valid including the total annual payments, expiration of the term, and binding identification of the lessee and in full force lessor thereunder; and effect. The Company is not in default under any Lease. The Company has not received written notice (iii) the current use of any existing or pending condemnation proceedings affecting the each parcel of owned and leased Real Property. The Leases afford the Company peaceful use and undisturbed possession operation of the Real Property that is in the subject matter conduct of each respective LeaseCompany’s or any Acquired Company’s business does not violate in any material respect any Law, covenant, condition, restriction, easement, license, permit or agreement. Except for the occupancy and use No material improvements constituting a part of the Real Property encroach on real property owned or leased by a Person other than Company or an Acquired Company. There are no Actions pending nor, to the Company there are no leasesMember’s Knowledge, tenancies, licenses threatened against or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that affecting the Real Property is not, or has not been, any portion thereof or interest therein in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice nature or in lieu of any pending condemnation or anticipated change in any such applicable Laws eminent domain proceedings that would reasonably be expected material to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except the Acquired Companies, taken as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third partiesa whole.
Appears in 1 contract
Title to Assets; Real Property. (a) Except The Company and each Practice Entity, as set forth on Section 4.09(a) applicable, have good and valid (and, in the case of the Disclosure Schedules, the Company has not owned any Real Property.
(b, good and marketable fee simple) The Company has title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business consistent with past practice since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate procedurespayable;
(iiiii) mechanics, carriers’', workmen’s's, repairmen’s 's or other like liens arising or incurred in the ordinary course of businessbusiness that are not delinquent and which are not, individually or in the aggregate, material to the business of the Company or any Practice Entity;
(iii) liens for indebtedness set forth in the Financial Statements or Schedules hereto;
(iv) easementsliens or rights for deposits or advance payments received in the ordinary course of business;
(v) requirements and restrictions of zoning, rights of way, zoning ordinances building and other similar encumbrances affecting leased Real Property that do Laws, rules and regulations regulating the use or occupancy of the real property or the activities conducted thereon which are not adversely affect violated by the current use or occupancy of such real property or operation of the business at the Real Property; orthereon;
(vvi) statutory liens of landlords for amounts not yet due and payable;
(vii) encumbrances arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business; or;
(cviii) The real property at encumbrances arising from or described in any Contracts or other documents which are described in this Agreement or any Schedule or Exhibit to this Agreement; and
(ix) encumbrances listed on Schedule 3.10(a)(ix) of the addresses listed in Disclosure Schedules.
(b) Section 4.09(c3.10(b) of the Disclosure Schedules constitutes all lists (i) the street address of the each parcel of Real Property Property; (ii) if such property is leased or subleased by the Company or any Practice Entity, the landlord under the lease, the rental amount currently being paid, and lists, as the expiration of the date term of this Agreementsuch lease or sublease for each leased or subleased property; and (iii) the current use of such property. With respect to owned Real Property, Sellers have delivered or made available to Buyers true, complete and correct copies of the deeds and other instruments (as recorded) by which the Company or the applicable Practice Entity acquired such Real Property, and copies of all leases (including title insurance policies, opinions, abstracts and surveys in the relevant addresses possession of Sellers, the Company or a Practice Entity and parties) for relating to the Real Property (collectivelyProperty. With respect to leased Real Property, the “Leases”). The Leases are legalSellers have delivered to Buyers true, valid complete and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice correct copies of any existing or pending condemnation proceedings leases affecting the Real Property. The Leases afford Neither the Company peaceful nor any Practice Entity is a sublessor or grantor under any sublease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any leased Real Property. The use and undisturbed possession operation of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the Company's and each Practice Entity’s business as currently conducteddo not violate in any material respect any Law, covenant, condition, restriction, easement, license, permit or agreement. The Real Property is sufficient as No material improvements constituting a part of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property encroach on real property owned or leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of a Person other than the Company to be conducted immediately after or the Closing applicable Practice Entity. There are no Actions pending nor threatened against or affecting the Real Property or any portion thereof or interest therein in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or costin lieu of condemnation or eminent domain proceedings.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.
Appears in 1 contract
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) of the Disclosure Schedules, the Each Company has not owned any good and valid (and, in the case of Owned Real Property.
(b, good and marketable fee simple) The Company has title to, or a valid leasehold interest in all leased in, the Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet DateProperty, other than properties and assets sold or otherwise disposed of in the ordinary course of business since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable or which are being contested in good faith and by appropriate proceduresproceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Company in accordance with GAAP;
(ii) the standard exclusions and Schedule B, Section 2 exceptions from coverage set forth in the Title Commitment which are not Mandatory Cure Items;
(iii) mechanicseasements, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business;
(iv) easementscovenants, rights of way, zoning ordinances and other similar encumbrances Encumbrances (A) set forth on Section 3.10(a) of the Disclosure Schedules affecting leased Real Property, or (B) which do not materially interfere with the ownership, use or operation of the Real Property that do not adversely affect for the operation of the business at of the Company in the manner presently conducted;
(iv) restrictions arising under Gaming Laws;
(v) nonexclusive licenses of Company Intellectual Property entered into in the Ordinary Course of Business;
(vi) pledges or deposits in the Ordinary Course of Business in connection with ERISA, workers’ compensation, unemployment insurance and other social security legislation;
(vii) right of parties in possession under Contracts relating to the Real Property; 28
(viii) bank collection liens under Uniform Commercial Code Section 4-210, and customary bank rights of set-off on deposits; or
(vix) other than with respect to owned Real Property, liens arising under original purchase price conditional sales contracts Contracts and equipment leases with third parties entered into in the ordinary course Ordinary Course of business; orBusiness which are not, individually or in the aggregate, material to the Company Entities, taken as a whole.
(cb) The real property at the addresses listed in Section 4.09(c3.10(b) of the Disclosure Schedules constitutes all lists separately for each Company: (i) the street address of each parcel of Real Property; and (ii) if such Real Property is owned by such Company in fee (the “Owned Real Property”) or leased or subleased by such Company as a tenant, the lease or sublease under which such Real Property is leased or subleased (such leases, the “Real Property Leases”). Other than as set forth in Section 3.10(b) of the Disclosure Schedules, there is no real property owned in fee or leased by any Company or by the Seller as lessee or sublessee which is utilized for the operation of the business of the Company in the manner presently conducted. The use and operation of the Real Property in the conduct of the business of Seller or either Company do not violate in any material respect any applicable Laws, covenant, condition, restriction, easement, license, Permit, or agreement. No material improvements constituting a part of the Real Property encroach on real property owned or leased by a Person other than the applicable Company. There are no Actions pending nor, to Seller’s Knowledge, threatened against or affecting the Real Property or any portion thereof or interest therein in the nature or in lieu of condemnation or eminent domain proceedings. There are no zoning or other land use proceedings (including condemnation proceedings), either instituted (and of which public notice has been given or written notice has otherwise been received by Seller or the Company Entities) or, to Seller’s Knowledge planned to be instituted, that would materially and listsdetrimentally affect the use and/or operation of the Real Property for the operation of the business of the applicable Company in the manner presently conducted. Except as set forth on Section 3.10(b) of the Disclosure Schedules, neither of the Company Entities has received any written notice of alleged, actual or potential violation with the conditions of any Permit or with the use and/or operation of the Real Property since May 6, 2016
(c) Section 3.10(c) of the Disclosure Schedule contains a true, complete and accurate list (including title, date, effective date (if different) and names of all parties) of all Contracts pursuant to which any Company leases, subleases or licenses a portion of the Real Property to another Person (together with all amendments and modifications thereof, “Third Person Lease Documents”). True and correct copies of the Third Person Lease Documents have been made available to Buyer. Subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereinafter in effect affecting creditors’ rights generally, and to general principles of equity, each Third Person Lease Document is the valid and binding obligation of, and enforceable in accordance with its terms against: (i) any Company that is party thereto, and (ii) to the Knowledge of Seller, each party thereto other than such Company. Neither any Company nor, to the Knowledge of Seller, any tenant, subtenant, licensee or other party to any of the Third Person Lease Documents, is in material default under any of the Third Person Lease Documents.
(d) Except as specifically listed in Section 3.10(d) of the Disclosure Schedule, since May 6, 2016, to the Knowledge of Seller, neither any Company nor Seller has received any written notice that the Real Property, or the operation of the Company Entities’ businesses is in violation of any Laws or written notice of any event, condition or circumstance that, with the giving of notice or the passage of time, or both, would constitute such a violation, in each case, except for such violations that would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; and, since May 6, 2016, to the Knowledge of Seller, neither the Company Entities’ interests in the Real Property, nor the operation of the Company Entities’ businesses, has been in violation of any applicable Laws, except for violations that would not, individually or in the aggregate, be reasonably likely to have a material adverse effect on the Company Entities’ businesses.
(e) Except as set forth in Section 3.10(e) of the Disclosure Schedule, neither Company has made or entered into any Contract to sell, mortgage, pledge or hypothecate, lease, sublease, convey, alienate, transfer or otherwise dispose of or encumber such Company’s interest in the Real Property, or any portion thereof or interest therein, other than as a result of the transactions contemplated by this Agreement;
(f) Except as specifically listed in Section 3.10(f) of the Disclosure Schedule, since May 6, 2016, Seller has not given or received any written notice of default, or any notice of an event, condition or circumstance that, with the giving of notice or passage of time, or both, could become a default, under any covenant, easement, restriction or other material agreement affecting or encumbering any Real Property or any portion thereof; and copies of the notices listed in Section 3.10(f) of the Disclosure Schedule that remain uncured or unresolved as of the date of this AgreementAgreement have been provided or made available to Buyer.
(g) Seller is not a “foreign person” within the meaning of Section 1445 of the Code or the Regulations promulgated thereunder.
(h) Attached as Section 3.10(h) of the Disclosure Schedule is a true, correct, and complete list of all leases existing land surveys (including the relevant addresses and partiesor established plats) for of the Real Property (collectively, which may include property in addition to and outside of the Real Property) performed for or in Seller’s possession or control (the “LeasesSurveys”). The Leases are legalSeller has provided Buyer with a true, valid correct, and binding complete list of all Surveys of the Real Property or any portion thereof, performed for or in the possession or control of Seller.
(i) Attached as Section 3.10(i) of the Disclosure Schedule is a true, correct, and complete list of all existing policies of title insurance in full force and effect. The Company is not in default under any Lease. The Company has not received written notice favor of any existing Company, as the owner or pending condemnation proceedings affecting lessee of any of the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “SubleasesExisting Title Policies”). True and complete correct copies of the Leases and Subleases Existing Title Policies have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Century Casinos Inc /Co/)
Title to Assets; Real Property. (a) Except as set forth on in Section 4.09(a3.12(a) of the Disclosure Schedules, the Company Parent has not good and valid (and, in the case of owned any Real Property.
(b, good and marketable fee simple) The Company has title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business consistent with past practice since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable, as well as any Taxes currently due and payable or being contested in good faith by appropriate proceduresproceedings and as to which adequate reserves have been established on the Financial Statements;
(iiiii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of businessbusiness consistent with past practice or amounts that are not delinquent and which are not, individually or in the aggregate, material to the business of the Company Parent;
(iii) all reservations, covenants, conditions, restrictions, easements, reservations, limitations and other matters of public record;
(iv) easementsany matters not shown by the public records that would be disclosed by an accurate survey of the Real Property.
(v) all applicable zoning and building ordinances, codes and regulations;
(vi) legal highways, roads and rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that do not adversely affect the operation of the business at the Real Property; or
(vvii) other than with respect to owned Real Property, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered 49 into in the ordinary course of business; orbusiness consistent with past practice which are not, individually or in the aggregate, material to the business of the Company Parent.
(cb) The real property at the addresses listed in Section 4.09(c3.12(b)(i) of the Disclosure Schedules constitutes all lists (i) the street address of the each parcel of Real Property Property; (ii) if such property is leased or subleased by the Company Parent, the landlord under the lease, the rental amount currently being paid, and lists, as the expiration of the date term of this Agreementsuch lease or sublease for each leased or subleased property; and (iii) the current use of such property. With respect to owned Real Property, Sellers have delivered or made available to Buyer true, complete and correct copies of the deeds and other instruments (as recorded) by which the Company Parent acquired such Real Property that are in the possession of Sellers or the Company Parent, and copies of all leases (including title insurance policies, opinions, abstracts and surveys in the relevant addresses possession of Sellers or the Company Parent and parties) for relating to the Real Property (collectivelyProperty. With respect to leased Real Property, the “Leases”). The Leases are legalSellers have delivered or made available to Buyer true, valid complete and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice correct copies of any existing or pending condemnation proceedings leases affecting the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on in Section 4.09(f3.12(b)(ii) of the Disclosure Schedules, each the Company Parent is not a sublessor or grantor under any sublease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any leased Real Property. The use and operation of the Leases and Subleases Real Property in the conduct of the Company Parent’s business do not violate in any material respect any Law, covenant, condition, restriction, easement, license, permit or agreement to which the Real Property is subject. No material improvements constituting a part of the Real Property encroach on real property owned or leased by a Person other than the Company Parent. There are arm’s length transactions with unrelated third partiesno Actions pending nor threatened in writing against or affecting the Real Property or any portion thereof or interest therein in the nature or in lieu of condemnation or eminent domain proceedings.
Appears in 1 contract
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) Each of the Disclosure SchedulesAcquired Companies has good and valid (and, in the Company has not case of owned any Real Property.
(b, good and fee simple) The Company has title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements Balance Sheet or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business consistent with past practices for fair value since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):following:
(i) those items set forth in Section 4.09(b3.14(a)(i) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable delinquent or being contested in good faith by appropriate proceduresprocedures and described in Section 3.14(a)(ii) of the Disclosure Schedules;
(iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business;
(iv) easements, rights of way, zoning ordinances and other similar encumbrances Encumbrances of record affecting leased Real Property that do not adversely affect the operation of the business at the Real Property; or;
(v) other than with respect to owned Real Property, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business;
(vi) liens incurred in connection with worker’s compensation and unemployment insurance or other similar Laws;
(vii) statutory landlords’ liens; or
(viii) other immaterial imperfections of title or Encumbrances, if any.
(b) Section 3.14(b) of the Disclosure Schedules lists: (i) the street address of the one (1) owned parcel of Real Property; (ii) the street address of each parcel of leased Real Property; and (iii) all leases, amendments to such leases and all other agreements affecting the terms of such leases for the leased Real Property (collectively, “Leases”) including the identification of the lessee and lessor thereunder, the expiration of the term thereof and the number and length of any extension rights.
(c) The real property at the addresses listed in Section 4.09(c) material improvements on each parcel of the Disclosure Schedules constitutes all of the Real Property leased by the Company and lists, as of the date of this Agreement, all leases (including the relevant addresses and parties) for the Real Property (collectively, the “Leases”). The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available access to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanicalsewer, water, sewergas, wastewaterelectric, storm water, paving, parking equipment, systems telephone and facilities included therein other utilities as are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate necessary to enable allow the business of the Company Acquired Companies operated thereon to be conducted immediately after the Closing operated in the same manner as the ordinary course of business and consistent with past practices of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is Acquired Companies as currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliateoperated. Except as set forth on Section 4.09(f3.14(c) of the Disclosure Schedules, the material improvements located on each parcel of Real Property are in good condition and repair (except for ordinary wear and tear) and allow the business of the Leases Acquired Companies to be operated in the ordinary course of business and Subleases consistent with past practices. No condemnation proceedings are arm’s length transactions with unrelated third partiespending or, to the Knowledge of the Company, threatened as to any Real Property.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amc Entertainment Holdings, Inc.)
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) The Company or a Subsidiary has good and valid (and, in the case of the Disclosure Schedules, the Company has not owned any Real Property.
(b, good and marketable fee simple, subject to Permitted Encumbrances) The Company has title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Interim Financial Statements or acquired after the Interim Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business consistent with past practice since the Interim Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b3.10(a) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate procedurespayable;
(iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business consistent with past practice or amounts that are not delinquent and which are not, individually or in the aggregate, material to the business of the Company or the Subsidiary that owns the property;
(iv) workers’ or unemployment compensation liens arising in the ordinary course of business;
(ivv) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that do not adversely affect which are not, individually or in the operation aggregate, materially detrimental to the business of the business at Company or the Subsidiary that owns the property;
(vi) other than with respect to owned Real Property; or
(v) , liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business; or
(c) The real property at the addresses listed in Section 4.09(c) of the Disclosure Schedules constitutes all of the Real Property leased by the Company and listsbusiness consistent with past practice, as of the date of this Agreement, all leases (including the relevant addresses and parties) for the Real Property (collectively, the “Leases”). The Leases which are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing individually or pending condemnation proceedings affecting the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof aggregate material to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after Company;
(vii) the Closing in the same manner as the business interests of the Company has been conducted immediately prior lessors and sublessors with respect to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently property covered by the Real Property leases disclosed in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f3.10(b) of the Disclosure Schedules, each or Encumbrances described or referenced in the Real Property leases disclosed in Section 3.10(b) of the Leases Disclosure Schedules; or
(viii) Encumbrances referenced in the Title Policies, whether or not such Encumbrances were excluded from coverage under such Title Insurance Policies.
(b) Section 3.10(b) of the Disclosure Schedules lists (i) the street address of each parcel of Real Property; and Subleases are arm(ii) if such property is leased or subleased by the Company or any Subsidiary, the landlord under the lease. With respect to owned Real Property, Seller has Delivered to Buyer true, complete and correct copies of the deeds and other instruments (as recorded) by which the Company or Subsidiary that acquired such Real Property. With respect to leased Real Property, Seller has Delivered to Buyer true, complete and correct copies of any leases of the Real Property. To Seller’s length transactions with unrelated third partiesKnowledge, no material improvements constituting a part of the Real Property encroach in any material respect on real property owned or leased by a Person other than the Company or Subsidiary.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Northwest Pipe Co)
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) The Target Companies have good and valid (and, in the case of the Disclosure Schedules, the Company has not owned any Owned Real Property.
(b, good and marketable or indefeasible, as applicable, fee simple) The Company has title to, or a valid leasehold leasehold, easement or other interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course Ordinary Course of business Business since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b3.10(a) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate procedurespayable;
(iii) inchoate mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course Ordinary Course of businessBusiness securing obligations that are not delinquent and which are not, individually or in the aggregate, material to the business of the Target Companies;
(iv) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased any Owned Real Property that do not adversely affect which are not, individually or in the aggregate, materially adverse (i) to the continued use and operation of such Owned Real Property in the manner that it is currently being used or (ii) the business at of the Real Property; orTarget Companies;
(v) liens other than with respect to any of the Owned Real Property, Encumbrances arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course Ordinary Course of businessBusiness which are not, individually or in the aggregate, material to the business of the Target Companies; orand
(cvi) The real property at the addresses with respect to each parcel of Material Real Property, (i) those matters listed in on Section 4.09(c3.10(a)(vi) of the Disclosure Schedules constitutes all for such parcel of the Material Real Property leased by the Company and lists, as (ii) those Encumbrances affecting such parcel of the date of this Agreement, all leases (including the relevant addresses and parties) for the Real Property (collectively, the “Leases”). The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person if any, that (A) were not created by, through or entity other than the Company occupies or uses under any portion of the Real Property, except as set forth on Target Companies and (B) to the Seller’s Knowledge do not exist.
(b) Section 4.09(c3.10(b) of the Disclosure Schedules lists (i) the “Subleases”)street address of each parcel of Real Property; (ii) the Target Company that owns, leases or subleases such property; (iii) if such property is leased or subleased, the landlord under the lease, the base rental amount currently being paid, and the expiration of the term of such lease or sublease for each leased or subleased property; and (iv) to Seller’s Knowledge, all Real Property appurtenant to such parcel of Real Property; and (v) the current use of such Real Property. True With respect to Owned Real Property, Seller has delivered or made available to Buyer true, complete and complete correct copies of the Leases deeds and Subleases have been other instruments (as recorded) by which the applicable Target Company acquired such Owned Real Property, and copies of all title insurance policies, opinions, abstracts and surveys in the possession of Seller or any of the Target Companies and relating to such Owned Real Property. With respect to leased or subleased Real Property, Seller has delivered or made available to Buyer.
(d) Since Buyer true, complete and correct copies of any leases or subleases creating the first date the Company occupied the applicable Target Company’s interest in such Real Property. None of the Target Companies is a lessor, sublessor or grantor under any lease, sublease or other instrument granting to any other Person any right to the Company has not received a notice that the Real Property is notpossession, lease, occupancy or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the enjoyment of any Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or use and operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conductedof the Target Companies do not violate in any material respect any Law, covenant, condition, restriction, easement, license, permit or agreement. The No material improvements constituting a part of the Real Property, other than the Material Real Property is sufficient as (for which Buyer will rely on the surveys provided pursuant to Section 5.09(b)), encroach on real property owned or leased by a Person other than one of the date hereof to permit the continued conduct of the business as conducted immediately prior Target Companies. There are no Actions pending nor, to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently threatened against or affecting the Real Property or any portion thereof or interest therein in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in the nature or costin lieu of condemnation or eminent domain proceedings.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.
Appears in 1 contract
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) of the Disclosure Schedules, the Company has not owned any Real Property.
(b) 3.10.1 The Company has a good, valid and marketable fee simple title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to to, or a valid leasehold interest in, all tangible personal property and other assets as reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business since the Balance Sheet Date. All such Real Property and other properties and assets are sufficient for the Company to conduct the Business after the Closing Date in substantially the same manner as it currently operates. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for Encumbrances that will be removed prior to or at Closing pursuant to Section 5.19 and the following (collectively referred to as “Permitted Encumbrances”):
(i) 3.10.1.1 those items set forth in on Section 4.09(b) 3.10.1 of the Disclosure Schedules;
(ii) 3.10.1.2 liens for Taxes not yet due and payable or being contested in good faith by appropriate proceduresprocedures with adequate reserves established therefor in accordance with GAAP;
(iii) 3.10.1.3 mechanics’, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of businessbusiness for amounts not yet due and payable;
(iv) 3.10.1.4 easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that they do not adversely affect materially impair or materially interfere with the operation of the business at the Real Property; orBusiness as currently conducted;
(v) liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course 3.10.1.5 licenses of business; or
(c) The real property at the addresses listed in Section 4.09(c) of the Disclosure Schedules constitutes all of the Real Company Intellectual Property leased by the Company and lists, as of the date of this Agreement, all leases (including the relevant addresses and parties) for the Real Property (collectively, the “Leases”). The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) 3.9.1.8 of the Disclosure Schedules; or
3.10.1.6 other imperfections of title or Encumbrances, each of if any, that do not materially impair or materially interfere with the Company’s possessory rights under the Leases and Subleases are arm’s length transactions with unrelated third partiesfor the Leased Real Property.
Appears in 1 contract
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) The Company and/or the Subsidiaries have good and valid (and, in the case of the Disclosure Schedules, Real Property owned by the Company has not owned any Real Property.
(bor the Subsidiaries, good and marketable fee simple) The Company has title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible of its personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business consistent with past practice since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):. Schedule 3.10(a) lists all manufacturing equipment and any other material manufacturing asset owned by a Material Customer, which is in the possession of, and used by, the Company or a Subsidiary. The Company (or the applicable Subsidiary) has the right to possess and use the assets listed on Schedule 3.10(a) in the manner those assets are currently being possessed and used.
(b) Schedule 3.10(b) lists (i) those items set forth in Section 4.09(b) the street address of the Disclosure Schedules;
each parcel of Real Property; (ii) liens for Taxes not yet due whether such property is owned by the Company or leased or subleased by the Company (as lessee or sublessee); and payable or being contested in good faith by appropriate procedures;
(iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course current use of business;
(iv) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that do not adversely affect the operation of the business at the such property. With respect to owned Real Property; or
(vx) liens arising under original purchase price conditional sales contracts the Company has delivered or made available to Buyer true, complete, and equipment leases with third parties entered into correct copies of the deeds and other instruments (as recorded), which to the Knowledge of the Company are in the ordinary course of business; or
(c) The real property at the addresses listed in Section 4.09(c) possession of the Disclosure Schedules constitutes all of the Real Property leased by the Company and lists, as of the date hereof, by which the Company or the Subsidiary acquired such Real Property, and (y) copies of this Agreementall title insurance policies, all leases (including opinions, abstracts, and surveys which to the relevant addresses Knowledge of the Company are in the possession of the Company as of the date hereof and parties) for the relate to such Real Property (collectivelyProperty. With respect to leased Real Property, the “Leases”). The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice delivered or made available to Buyer true, complete, and correct copies of any existing or pending condemnation proceedings leases affecting the Real Property. The Leases afford Except as set forth on Schedule 3.10(b), neither the Company peaceful and undisturbed possession nor a Subsidiary is a sublessor or grantor under any sublease or other instrument granting to any other Person any right to the possession, lease, or occupancy of any leased Real Property. To the Knowledge of the Real Property that is Company, the subject matter of each respective Lease. Except for the occupancy use and use operation of the Real Property by the Company there are no leasesor the Subsidiary does not violate in any material respect any Law, tenanciescovenant, licenses condition, restriction, easement, license, permit, or other rights of occupancy or use for any portion of agreement (whether binding on the Company, the Real Property, and or the owner of the same). To the Knowledge of the Company, no material improvements constituting a part of the Real Property encroach on real property owned or leased by a Person or entity other than the Company occupies or uses any portion a Subsidiary. There are no Actions pending nor, to Knowledge of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including threatened against or affecting the walls, roofs, and structural elements owned Real Property or any portion thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included or interest therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or costin lieu of condemnation or eminent domain proceedings.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.
Appears in 1 contract
Samples: Merger Agreement (Nn Inc)
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) Each of the Disclosure SchedulesAcquired Companies, as applicable, has good and valid (and, in the Company has not case of owned any Real Property.
(b, good and fee simple) The Company has title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements Balance Sheet or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b4.11(a) of the Disclosure Schedules;
(ii) liens for Taxes (A) not yet due and payable delinquent or (B) being contested in good faith by appropriate proceduresprocedures and for which appropriate reserves have been established in the applicable financial statements in accordance with GAAP;
(iii) liens arising under purchase money and capital lease arrangements arising or incurred in the ordinary course of business;
(iv) mechanics, carriers’, workmen’s, repairmen’s, materialmen’s, warehousemen’s or other like liens arising or incurred in the ordinary course of business;
(ivv) easements, rights of way, zoning ordinances and other similar encumbrances of record affecting leased Real Property;
(vi) all matters of record affecting any Real Property that do not adversely affect the operation would be shown on current surveys of the business at the real estate or any standard printed exceptions as would otherwise appear on a title insurance policy;
(vii) other than with respect to owned Real Property; or
(v) , liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary of business;
(viii) Encumbrances incurred or deposits made in the ordinary course of businessbusiness in connection with worker’s compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations;
(ix) statutory landlords’ or warehouse liens;
(x) non-exclusive licenses of Intellectual Property disclosed to Buyer in the Data Room; or
(cxi) The real property Encumbrances for Indebtedness to be paid at the addresses listed Closing or otherwise taken into account in the calculation of the Purchase Price.
(b) Section 4.09(c4.11(b) of the Disclosure Schedules constitutes all lists the street address of the each parcel of owned Real Property leased by the Company and lists, as of the date of this Agreement, all leases (including the relevant addresses and parties) for the such owned Real Property (collectively, the “Leases”). The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises constitutes all of the real property used in the conduct operation of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company Acquired Companies. The Acquired Companies do not lease any Real Property and the Acquired Companies have not currently leased or otherwise granted to be conducted immediately after any Person the Closing in right to use or occupy any Real Property or any portion thereof. No condemnation proceeding is pending or, to the same manner as the business Knowledge of the Company has been conducted immediately prior Company, threatened as to any Real Property. Each of the Acquired Companies is in peaceful and undisturbed possession of each parcel of owned Real Property and there is no contractual or legal restriction that precludes or restricts the ability to use the owned Real Property for the purposes for which it is currently being used. To the Knowledge of the Company, all buildings, fixtures and improvements attached or joined to the Closing, (ii) owned Real Property were constructed and to Seller’s Knowledge, none of such assets is currently built in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or costcompliance with all then-applicable Laws.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (CPG Newco LLC)
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) of the Disclosure Schedules, the Company has not owned any Real Property.
(b) The Company has good and valid (and, in the case of owned Real Property, good and marketable fee simple) title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Company Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b3.10(a) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate procedures;
(iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business;
(iv) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that do not adversely affect the operation of the business at the Real Property; or;
(v) other than with respect to owned Real Property, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business; or
(cvi) The real property at the addresses listed in other imperfections of title or Encumbrances, if any, that have not had, and would not have, a Material Adverse Effect.
(b) Section 4.09(c3.10(b) of the Disclosure Schedules constitutes all lists: (i) the street address of each parcel of owned Real Property; and (ii) the street address of each parcel of leased Real Property leased by the Company Property, and listsa list, as of the date of this Agreement, of all leases (including the relevant addresses and parties) for the each parcel of leased Real Property involving total annual payments of at least $100,000 (collectively, the “Leases”). The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting including the Real Property. The Leases afford the Company peaceful and undisturbed possession identification of the Real Property that is the subject matter of each respective Lease. Except for the occupancy lessee and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyerlessor thereunder.
(dc) Since The Company (or one of its subsidiaries) owns or has the first date the Company occupied the Real Propertyexclusive ability to access, including by use of “private keys” or other equivalent means, the Company has not received a notice that the Real Property is not(i) cash on hand, or has not been, cash held in material compliance with all applicable building, zoning, subdivision cryptocurrency wallets or similar mediums of custody for cryptocurrencies and other land use Law affecting the Real Property. The Company has not received written notice of any pending tokens and digital assets or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closingexchange accounts, (ii) cash equivalents, (iii) cryptocurrencies, tokens, digital assets and to Seller’s Knowledgeother asset equivalents and (iv) assets held in accounts other than any cryptocurrencies, none of such assets is currently tokens, digital asset and other asset equivalents, in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not each case in all material in nature or costrespects.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.
Appears in 1 contract
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) of the Disclosure Schedules, the Company has not owned any Real Property.
(b) The Company has good and valid title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business consistent with past practices since the Balance Sheet Date. The Company has never owned and does not own any Real Property. All items of tangible personal property which, individually or in the aggregate, are material to the operation of the business of the Company as currently conducted, are in good condition and in a state of good maintenance and repair (ordinary wear and tear excepted) and suitable for the purposes used, except as would not, individually or in the aggregate, reasonably be expected to be material to the Company. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):following:
(i) those items set forth in Section 4.09(b3.09(a)(i) of the Disclosure Schedules;
(ii) with respect to leased Real Property, items disclosed in the lease for such Real Property identified on Section 3.09(a)(ii) of the Disclosure Schedules;
(iii) liens for Taxes not yet due and payable or being contested in good faith by appropriate procedures;
(iii) mechanics, carriers’in each case, workmen’s, repairmen’s or other like liens arising or incurred if adequate reserves with respect thereto are maintained on the Balance Sheet in the ordinary course of business;accordance with GAAP; or
(iv) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that Encumbrances which do not adversely affect materially detract from the operation value or materially interfere with any present use of such property or assets (the business at items described in clauses (i) – (iv) of this Section 3.09(a) are, collectively, the Real Property; or“Permitted Encumbrances”).
(vb) liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business; or
(c) The real property at the addresses listed in Section 4.09(c3.09(b) of the Disclosure Schedules constitutes all lists the street address of the each parcel of leased Real Property leased by the Company Property, and listsa list, as of the date of this Agreement, of all leases (including the relevant addresses and parties) for the each parcel of leased Real Property (collectively, the “Leases”). The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting including the Real Property. The Leases afford the Company peaceful and undisturbed possession identification of the Real Property that is lessee and lessor thereunder. Other than the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company Company, there are no leases, tenancies, licenses tenants or other rights parties in possession of occupancy or use for any portion of the leased Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws threatened condemnation proceeding that would reasonably be expected to result in a material restriction upon preclude or materially impair the ownership, alteration, use, occupancy or operation use of the Real Property. The any leased Real Property comprises all of the real property used in the conduct of the business as for which it is currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the applicable Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.ACTIVE 209289734v.13
Appears in 1 contract
Title to Assets; Real Property.
(a) Except as set forth on in Section 4.09(a3.10(a) of the Company Disclosure SchedulesLetter, each of the Company Companies has not owned any Real Property.
(b) The Company has good and marketable title to, or a valid leasehold interest in in, all leased Real Property real property, personal property and good other assets (whether real, personal or mixed and valid title whether tangible or intangible) that it purports to own, including all tangible such property, personal property and other assets reflected as being owned by the Company in the Audited Company Financial Statements or acquired after the Balance Sheet Dateotherwise in its books and records, other than properties and assets sold or otherwise disposed of in the ordinary course of business since the Balance Sheet DateOrdinary Course. All such properties and assets (including leasehold interestsReal Property) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):Encumbrances):
(i) those items set forth in Section 4.09(b) of the Disclosure Schedules;
(ii) statutory liens for Taxes not yet due and payable or being contested in good faith by appropriate procedurespayable;
(iiiii) mechanics, carriers’, workmen’s, repairmen’s, warehousemen, laborers, materialmen’s or other like liens arising or incurred in the ordinary course of business;Ordinary Course or amounts that are not delinquent and which are not, individually or in the aggregate, material to the Company Business; or
(iviii) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property which are not, individually or in the aggregate, materially adverse to the Company Business.
(iv) the exceptions and encumbrances set forth in the title policies and recorded vesting deeds of the Owned Real Property.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a true, correct and complete list of (i) all real property owned by each of the Company and the Company Subsidiaries (collectively, the Owned Real Property), including their street addresses, and (ii) all interests in real property leased or subleased by any of the Companies as lessee (collectively, the Leased Property), and identifies for each lease of Leased Property (collectively, the Leases) the parties thereto, the street address of the property subject thereto, the base rent payable thereunder, and the renewal option date (if any). With respect to each Owned Real Property, the Company or applicable Company Subsidiary has good and marketable title to each such Owned Real Property, subject only to Permitted Encumbrances, and has delivered or made available to GGB true, complete and correct copies of the deeds and other instruments (as recorded) by which it acquired such Owned Real Property, and copies of all title insurance policies, in its possession and relating to the Owned Real Property. With respect to the Leased Property, the Company or applicable Company Subsidiary has a valid leasehold interest in each Leased Property, subject only to Permitted Encumbrances. The Company has previously delivered to GGB correct and complete copies of each Lease, together with all amendments, modifications and supplements related thereto. With respect to each Lease: (i) the Lease is legal, valid, binding, enforceable and in full force and effect; (ii) none of the Companies or, to the Company’s Knowledge, any other party to the Lease is in breach or default thereunder, and the Company has not received written notice of any event has occurred which, with notice or lapse of time or both, would constitute such a breach or default or permit termination, modification or acceleration under the Lease; (iii) no party to the Lease has provided the other party with notice of any repudiation of any provision thereof; (iv); (v) the Lease has not been modified in any respect, except to the extent that do such modifications are disclosed by the documents delivered to GGB; and (vi) none of Company or the Company Subsidiaries has assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in the Lease.
(c) Except as set forth in Section 3.10(c) of the Company Disclosure Letter, with respect to each Real Property: (i) the Company has not adversely affect received written notice that the current use of such Real Property and the operation of the business at the Company Business thereon violates any instrument of record or Contract affecting such Real Property, or any applicable Law in any material respect (without any fines or monetary liabilities attached); or(ii) to the Company’s Knowledge, there are no leases, subleases, licenses, concessions or other Contracts, written or oral, granting to any Person the right of use or occupancy of any portion of such Real Property except in favor of one of the Companies; and (iii) to the Company’s Knowledge, there are no Persons in possession of such Real Property except the Company or one of the Company Subsidiaries.
(vd) liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in To the ordinary course of business; or
(c) The real property at the addresses listed in Section 4.09(c) of the Disclosure Schedules constitutes all of the Real Property leased by extent necessary to run the Company and lists, Business as conducted as of the date of this Agreement, the Company or applicable Company Subsidiary has all leases (including the relevant addresses certificates of occupancy and parties) Permits necessary for the current use and operation, in all material respects, of each Real Property (collectivelyProperty. Such Permits have been validly issued by the appropriate Governmental Authority in compliance with all applicable Laws, and, to the Company’s Knowledge, the “Leases”)Company or applicable Company Subsidiary has fully complied with all conditions of the Permits applicable to it. The Leases All such Permits are legal, valid and binding and in full force and effect. The Company is not effect in default under any Lease. The Company has not received written notice all material respects without requirement of further consent or approval of any existing or pending condemnation proceedings affecting the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing DatePerson.
(e) All buildingsTo the Company’s Knowledge, plantsno part of any Real Property is subject to any building or use restrictions that would, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased individually or used by the Company in the business and all structuralaggregate, mechanical, and other physical systems located at materially restrict or prevent the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business operation of the Company to be conducted immediately after the Closing Business in the same manner as the business of the Company any material respect on such Real Property, and each such Real Property is properly and duly zoned for its current use, and such current use is in all respects a conforming use. No Governmental Authority having jurisdiction over any Real Property has been conducted immediately prior issued or, to the Closing, (ii) and to SellerCompany’s Knowledge, none threatened to issue any notice or order, injunction, judgment, decree, ruling, writ or arbitration award that adversely affects the use or operation of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or costCompany Real Property.
(f) Section 4.09(f) There does not exist any actual or, to the Company’s Knowledge, threatened or contemplated, condemnation or eminent domain proceedings that affect any Real Property or any part thereof, and none of the Disclosure Schedules sets forth each Company or any of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) Subsidiaries has received any notice, oral or written, of the Disclosure Schedulesintention of any Governmental Authority or other Person to take or, each other than pursuant to the terms of the Leases and Subleases are arm’s length transactions with unrelated third partiesapplicable Contract, use any Real Property or any part thereof.
Appears in 1 contract
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) of the Disclosure Schedules, the Company has not owned any Real Property.
(b) The Company has good and valid (and, in the case of owned Real Property, good and marketable fee simple) title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course Ordinary Course of business Business since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b3.09(a) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate proceduresprocedures and for which there are adequate accruals or reserves on the Balance Sheet;
(iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course Ordinary Course of businessBusiness or amounts that are not delinquent, and which are not, individually or in the aggregate, material to the business of the Company;
(iv) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that do not adversely affect which are not, individually or in the operation aggregate, material to the business of the business at the Real PropertyCompany; or
(v) other than with respect to owned Real Property, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course Ordinary Course of business; orBusiness which are not, individually or in the aggregate, material to the business of the Company.
(cb) The real property at the addresses listed in Section 4.09(c3.09(b) of the Disclosure Schedules constitutes all lists (i) the street address of each parcel of Real Property; (ii) if such property is leased or subleased by the Company, the landlord under the lease, the rental amount currently being paid, and the expiration of the term of such lease or sublease for each leased or subleased property; and (iii) the current use of such property. With respect to owned Real Property leased Property, the Company has delivered or made available to Parent true, complete and correct copies of the deeds and other instruments (as recorded) by which the Company acquired such Real Property, and copies of all title insurance policies, opinions, abstracts and surveys in the possession of the Company and listsrelating to the Real Property. With respect to leased Real Property, as the Company has delivered or made available to Parent true, complete and correct copies of the date of this Agreement, all any leases (including the relevant addresses and parties) for affecting the Real Property (each, “Lease” and collectively, the “Leases”). The Leases are legal, valid and binding and in full force and effect. The Company is not in default a sublessor or grantor under any Lease. The Company has not received written notice sublease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any existing or pending condemnation proceedings affecting the leased Real Property. The Leases afford the Company peaceful use and undisturbed possession operation of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the Company’s business as currently conducteddo not violate any Law, covenant, condition, restriction, easement, license, permit or agreement. The Real Property is sufficient as No improvements constituting a part of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property encroach on real property owned or leased by a Person other than the Company. To the Knowledge of the Company, including there are no Actions pending or threatened against or affecting the walls, roofs, and structural elements Real Property or any portion thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included or interest therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or costin lieu of condemnation or eminent domain proceedings.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.
Appears in 1 contract
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(aThe Company does not own any interest (other than the leasehold interests noted herein) of the Disclosure Schedules, the Company has not owned any in Real Property.
(b) . The Company has a valid leasehold interest in all leased Real Property and good and valid title to all tangible (and, in the case of the Real Property, a valid leasehold interest in) personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business consistent with past practice since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b) Encumbrances for Taxes, assessments, water and sewer rents and other charges of the Disclosure SchedulesGovernmental Authorities not yet due and payable;
(ii) liens for Taxes not yet due and payable or Encumbrances being contested in good faith by appropriate proceduresproceedings that are described in Section 3.10 of the Disclosure Schedule;
(iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens Encumbrances arising or incurred in the ordinary course of businessbusiness for amounts that are not delinquent and which are not, individually or in the aggregate, material to the business of the Company;
(iv) statutory Encumbrances or Encumbrances arising by operation of Law in favor of landlords for amounts not yet due and payable under any leases for Real Property, and all matters, exclusions, limitations, obligations, conditions, exceptions, and disclaimers, if any, reflected in such leases;
(v) Encumbrances securing rental payments under capital leases for amounts not yet delinquent that are described in Section 3.10 of the Disclosure Schedule;
(vi) Encumbrances in favor of the lessors and licensors under leases for amounts not yet delinquent and Encumbrances to which the fee simple interest (or any superior leasehold interest) in the Real Property are subject that are described in Section 3.10 of the Disclosure Schedule;
(vii) easements, rights of way, zoning ordinances and other similar encumbrances Encumbrances affecting leased Real Property that which are not, individually or in the aggregate, material to the business of the Company, which do not adversely affect prohibit or interfere with the current operation of any Real Property by the business at the Real PropertyCompany; or
(vviii) liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into Encumbrances that are described in Section 3.10 of the ordinary course of business; orDisclosure Schedule that will be released at Closing.
(cb) The real property at the addresses listed in Section 4.09(c3.10(b) of the Disclosure Schedules constitutes all Schedule lists (i) the street address of each parcel of Real Property; (ii) if such property is leased or subleased by the Company, the landlord under the lease, the rental amount currently being paid, and the expiration of the Real Property term of such lease or sublease for each leased by or subleased property; and (iii) the Company and lists, as current use of the date of this Agreement, all leases (including the relevant addresses and parties) for the Real Property (collectively, the “Leases”)such property. The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting the Real Property. The Leases afford the Company peaceful and undisturbed possession of With respect to the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leasesleased, tenancies, licenses Sellers have delivered or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real PropertyBuyer true, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision complete and other land use Law correct copies of any leases affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f3.10(b) of the Disclosure SchedulesSchedule, each the Company is not a sublessor or grantor under any sublease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any Real Property that is not otherwise entitled thereto. To the Company’s Knowledge, the use and operation of the Leases and Subleases Real Property in the conduct of the Company’s business do not violate in any material respect any Law, Encumbrance or Permit. To the Company’s Knowledge, there are arm’s length transactions with unrelated third partiesno Actions pending or threatened against or affecting the Real Property or any portion thereof or interest therein in the nature or in lieu of condemnation or eminent domain proceedings.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Wavedancer, Inc.)
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) of the Disclosure Schedules, the Company has not owned any Real Property.
(b) The Company has good and valid title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Interim Financial Statements or acquired after the Interim Balance Sheet Date, other than than, with respect to personal property only, properties and assets sold or otherwise disposed of in the ordinary course of business Ordinary Course since the Interim Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b) of the Disclosure SchedulesSchedule 3.09(a);
(ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate procedurespayable;
(iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course Ordinary Course or amounts that are not delinquent and which are not, individually or in the aggregate, material to the business of businessa Company;
(iv) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that do not adversely affect which are not, individually or in the operation of aggregate, material to the business at the Real Propertyof a Company; or
(v) liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course Ordinary Course which are not, individually or in the aggregate, material to the business of businessa Company.
(b) No Company owns any Real Property. Schedule 3.09(b) lists (i) all leases of Real Property, including all amendments, extensions, renewals, guaranties and other agreements with respect thereto (the “Real Property Leases”); or(ii) the street address of each parcel of Real Property leased or subleased by a Company (the “Leased Real Property”); (iii) the landlord under the lease, the rental amount currently being paid, and the expiration of the term of such Real Property Lease for such Leased Real Property; and (iv) the current use of such Leased Real Property. With respect to such Leased Real Property, Sellers have delivered or made available to Buyer true, complete and correct copies of the Real Property Leases. The Company is not a sublessor or grantor under any sublease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any Leased Real Property (except between the Companies). The use and operation of the Leased Real Property by a Company in the conduct of the Business do not violate in any material respect any Law, covenant, condition, restriction, easement, license, permit or agreement. No material improvements constituting a part of the Leased Real Property encroach on real property owned by a Person other than the Companies. There are no Actions pending nor, to Sellers’ Knowledge, threatened against or affecting the Leased Real Property or any portion thereof or interest therein in the nature or in lieu of condemnation or eminent domain proceedings.
(c) The material improvements and fixtures on the Leased Real Property are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted, and are adequate for the purposes for which they are presently being used. To Sellers’ Knowledge, there are no structural deficiencies or latent defects with any such improvements.
(d) To Sellers’ Knowledge, all water, oil, gas, electrical, steam, compressed air, telecommunications, sewer, storm and waste water systems and other utility services or systems for the Leased Real Property have been installed and are operational and sufficient for the operation of the Business in the Ordinary Course. To Sellers’ Knowledge, each such utility service enters the Leased Real Property from an adjoining public street or valid private easement in favor of the supplier of such utility service or appurtenant to such Leased Real Property, and is not dependent for its access, use or operation on any land, building, improvement or other real property at interest that is not included in the addresses listed in Section 4.09(cLeased Real Property.
(e) of the Disclosure Schedules constitutes all Except as set forth on Schedule 3.09(e), none of the Real Property Leases have been assigned or sublet or amended, modified or supplemented in any way except for the oral agreement between the Companies for both Companies to use the premises leased by the Company and lists, as of the date of this Agreement, all leases (including the relevant addresses and parties) for pursuant to the Real Property (collectively, the “Leases”). The Real Property Leases are legal, valid and binding and in full force and effect. The Company is not Neither of the Companies nor, to Sellers’ Knowledge, the landlords thereunder are in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is Leases, and, to Sellers’ Knowledge, no event has occurred or circumstance exists which, with the subject matter delivery of each respective Lease. Except for notice, the occupancy and use passage of time or both, would constitute a breach or default, or permit the termination, modification or acceleration of rent under any Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to BuyerLease.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sterling Construction Co Inc)
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) Each of the Disclosure SchedulesAcquired Companies has good and valid (and, in the Company has not case of owned any Real Property.
(b, good and marketable fee simple) The Company has title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements Balance Sheet or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b3.14(a)(i) of the Disclosure SchedulesLetter;
(ii) liens for Taxes (A) not yet due and payable delinquent or (B) being contested in good faith by appropriate procedures, in each case for which there are adequate accruals and reserves on the Balance Sheet;
(iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of businessbusiness and for amounts that are not delinquent or being contested in good faith by appropriate procedures and which are not, individually or in the aggregate, likely to have a material adverse effect on the business of the Acquired Companies;
(iv) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that which do not adversely affect have a material adverse impact on the operation current use of the business at the Real Property; or;
(v) any standard printed exceptions as would customarily appear on a title insurance policy;
(vi) other than with respect to owned Real Property, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business;
(vii) liens incurred in connection with worker’s compensation and unemployment insurance or other similar Laws;
(viii) statutory landlords’ or warehouse liens; or
(cix) The real property at other imperfections of title or Encumbrances that do not materially detract from the addresses listed in value of, or restrict the use or operation of, the current use of the asset or Real Property subject thereto or affected thereby.
(b) Section 4.09(c3.14(b) of the Disclosure Schedules constitutes Letter lists: (i) the street address of each parcel of owned Real Property; and (ii) any leases, subleases, licenses or other occupancy agreements affecting the use or occupation of the owned Real Property. Neither the Company nor any of its Subsidiaries has owned any real property in the past that is not listed on Section 3.14(b) of the Disclosure Letter. The Company has delivered or made available to Buyer true, complete and correct copies of the deeds and other instruments (as recorded) by which the Acquired Companies acquired such Real Property, and copies of all title insurance policies, opinions, abstracts and surveys in the possession of any Acquired Company and relating to the owned Real Property.
(c) Section 3.14(c) of the Disclosure Letter lists: (i) the street address of each parcel of leased Real Property, and (ii) a list of all of the Real Property Leases for each parcel of leased by the Company and lists, as of the date of this Agreement, all leases (including the relevant addresses and parties) for the Real Property (collectively, the “Leases”). The Leases are legal, valid together with the applicable landlord under each such Lease, the rental amount currently being paid, and binding and in full force and effect. The Company is not in default under any the expiration of the term of such Lease. The Company has not received written notice delivered or made available to Buyer true, complete and correct copies of any existing or pending condemnation proceedings all Leases affecting the Real Property to which any Acquired Company is a party. None of the Acquired Companies is a sublessor or grantor under any sublease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any leased Real Property. None of the Acquired Companies or, to the Company’s Knowledge, any third party are in default under or has violated any provision of, or committed or failed to perform any act which, with or without notice, lapse of time or both would constitute a default under the provisions of any Lease.
(d) Except as set forth in Section 3.14(d) of the Disclosure Letter, the use and operation of the Real Property in the conduct of the Company’s business, including without limitation the operation of the buildings, improvements, machinery, equipment, personal property, vehicles and other tangible assets of the Acquired Companies located upon or used in connection with the Real Property, do not violate in any material respect any Law, covenant, condition, restriction, easement, license, permit or agreement.
(e) The Leases afford the Company and its Subsidiaries are in peaceful and undisturbed possession of each parcel of Real Property, and, to the Knowledge of the Company, there are no contractual or legal restrictions that preclude or restrict the ability to use the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use purposes for which it is currently being used. To the Knowledge of the Company, no material improvements constituting a part of the Real Property encroach on real property owned or leased by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no a Person or entity other than the an Acquired Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or costthan Permitted Encumbrances.
(f) Section 4.09(fThere are no Actions pending nor, to the Company’s Knowledge, threatened against or affecting the Real Property or any portion thereof or interest therein in the nature or in lieu of condemnation or eminent domain proceedings.
(g) None of the Disclosure Schedules sets forth each Acquired Companies have entered into any other contract for the sale of any Real Property or any constituent or portion thereof, other than any sale that has been completed.
(h) Neither the Company, its Subsidiaries nor any constituent partner of any of the Leases foregoing is a foreign corporation, foreign partnership or foreign estate (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on such terms are defined in Section 4.09(f) 1445 of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third partiesCode).
Appears in 1 contract
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) Each of the Disclosure SchedulesCompany and its Subsidiaries, as applicable, has good and valid (or, in the Company has not owned any case of Owned Real Property.
(b, good and marketable indefeasible fee simple) The Company has title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all Property, tangible personal property and other assets reflected in the Audited Financial Statements Balance Sheet or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business since the Balance Sheet Date. The Owned Real Property identified in Section 3.10(b) of the Disclosure Schedules and the Leased Real Property identified in Section 3.10(b) of the Disclosure Schedules comprise all of the real property used or intended to be used in, or otherwise related to, the Business. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b3.10(a) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate procedurespayable;
(iii) statutory or common law liens of mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of businessbusiness for amounts not delinquent or which are being contested by appropriate proceedings (provided that appropriate reserves required by GAAP have been made in respect thereof);
(iv) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that do not adversely affect the operation of the business at the Real Property; or;
(v) other than with respect to owned Real Property, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of businessparties; or
(cvi) The real property at the addresses listed in other imperfections of title or Encumbrances that are immaterial.
(b) Section 4.09(c3.10(b) of the Disclosure Schedules constitutes all lists: (i) the street address of each parcel of Owned Real Property; and (ii) the street address of each parcel of Leased Real Property leased by the Company Property, and lists, (iii) as of the date of this Agreementhereof, all leases (including leases, subleases, licenses, concessions and other agreements pursuant to which the relevant addresses and parties) for the Company or any of its Subsidiaries holds any Leased Real Property (collectively, the “Leases”). The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business identification of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) lessee and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliatelessor thereunder. Except as set forth on Section 4.09(f3.10(b) of the Disclosure Schedules, each none of the Leases and Subleases are arm’s length transactions with unrelated third partiesCompany or any of its Subsidiaries is a sublessor under any Lease.
Appears in 1 contract
Samples: Stock Purchase Agreement (Patterson Companies, Inc.)
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) of the Disclosure Schedules, the The Company has does not owned own any Real Property.
(b) real property. The Company has good and a valid leasehold interest in in, all leased Real Leased Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b2.10(a) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate procedures;
(iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business;
(iv) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that Property, which do not adversely affect or would not materially impair the use or occupancy of such real property in the operation of the business at of the Real PropertyCompany conducted thereon; or
(v) liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business; or
(cb) The real property at the addresses listed in Section 4.09(c2.10(b) of the Disclosure Schedules constitutes all lists: (i) the street address of the Real Property leased by the Company each parcel of Leased Property; and lists(ii) and a list, as of the date of this Agreement, of all leases for each parcel of Leased Property (collectively, “Leases”), including the relevant addresses identification of the lessee and partieslessor thereunder. Except as otherwise disclosed in Section 2.10(b) for of the Real Disclosure Schedules: (i) each Lease is legal, valid and binding on the Company, is in full force and effect and is enforceable against the Company, and, to the Knowledge of the Company, against the other parties thereto in accordance with its terms (except as such enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or fraudulent transfer or other similar laws now or hereafter in effect relating to the enforcement of creditors’ rights generally or general principles of equity), (ii) the Company’s possession and quiet enjoyment of the Leased Property under such Lease has not been disturbed, and, to the Knowledge of the Company, there are no disputes with respect to such Lease, and (iii) neither the Company nor to the Company’s Knowledge, any other party to the Lease is in breach or default under such Lease, and to the Company’s Knowledge, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such Lease.
(c) To the Company’s Knowledge, without any investigation, all buildings, structures, improvements, fixtures, building systems and equipment, and all components thereof, included in the Leased Property (collectively, the “LeasesImprovements”). The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating good condition and repair (ordinary wear and tear excepted) and are adequate to enable sufficient for the operation of the business of the Company Company. To the Company’s Knowledge, without any investigation, there are no structural deficiencies or latent defects affecting any of the Improvements and to be conducted immediately after the Closing Company’s Knowledge, without any investigation, there are no facts or conditions affecting any of the Improvements which would, individually or in the same manner as aggregate, interfere in any material respect with the use or occupancy of the Improvements or any portion thereof in the operation of the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or costCompany.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.
Appears in 1 contract
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) The Companies have good and valid (and, in the case of the Disclosure Schedules, the Company has not owned any Real Property.
(b, good and marketable fee simple) The Company has title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business consistent with past practice since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate proceduresprocedures and for which there are adequate accruals or reserves on the Balance Sheet;
(ii) the rights of tenants in possession under (1) that certain Lease between Scepter, as tenant, and Eco One, as landlord, entered into as of September 28, 2012, effective as of October 1, 2012 and (2) that certain Warehouse Lease Agreement between Xxxxxxx Manufacturing Corporation, as tenant, and Blitz RE Holdings, LLC, as landlord, dated April 3, 2012, as amended and as assigned to Eco One by that certain Assignment and Assumption Agreement dated September 28, 2012, as further amended (collectively, the “Existing Leases”);
(iii) mechanicsservitudes, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course easements of business;
(iv) easementsrecord, rights of way, covenants, conditions, restrictions, zoning ordinances and other similar encumbrances matters of record affecting leased title to the Real Property that which do not, individually or in the aggregate, materially affect the use or fair market value of the Real Property;
(iv) encroachments and title defects or irregularities, which are of a minor nature and which individually or in the aggregate do not adversely materially reduce the value of any asset of any Company so affected nor materially interfere with the use or materially affect the fair market value of such assets (including without limitation, the Real Property) in the operation of the business at the Real Property; orits business;
(v) other than with respect to owned Real Property, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business; orbusiness consistent with past practice which are not, individually or in the aggregate, material to the business of the Companies taken as a whole;
(cvi) The real property at liens arising in connection with Indebtedness, which shall be released on or prior to the addresses listed Closing Date; and
(vii) mechanics’, carriers’, workmen’s, repairmen’s, construction, materialmen’s or other like liens arising or incurred in the ordinary course of business consistent with past practice or amounts that are not delinquent, not registered on title to the owned Real Property and in respect of which adequate holdbacks are maintained under applicable Laws and which are not, individually or in the aggregate, material to either Company.
(b) Section 4.09(c3.10(b) of the Disclosure Schedules constitutes lists (i) the street address of each parcel of Real Property; (ii) if such property is leased or subleased by either Company, the landlord and tenant under the lease, the rental amount currently being paid, a list of all security deposits under such lease, a list of any prepayments of rent and any free rent or other lease incentives under such lease, and the expiration of the term of such lease or sublease for each leased or subleased property; and (iii) the current use of such property. With respect to owned Real Property leased Property, Seller has delivered or made available to Buyer true, complete and correct copies of the deeds and other instruments (as recorded) by which such Company acquired such Real Property, and copies of all title insurance policies, opinions, abstracts and surveys in the possession of Seller or either Company and lists, as of the date of this Agreement, all leases (including the relevant addresses and parties) for relating to the Real Property (collectivelyProperty. With respect to leased Real Property, the “Leases”). The Leases are legalSeller has delivered or made available to Buyer true, valid complete and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice correct copies of any existing or pending condemnation proceedings leases affecting the Real Property. The Leases afford Neither Company is a sublessor or grantor under any sublease or other instrument granting to any other Person any right to the Company peaceful possession, lease, occupancy or enjoyment of any leased Real Property. To the Seller’s Knowledge, the use and undisturbed possession operation of the Real Property that is in the subject matter conduct of each respective Leaseeither Company’s business do not violate in any material respect any Law, covenant, condition, restriction, easement, license, permit or agreement. Except for the occupancy and use No material improvements constituting a part of the Real Property encroach on real property owned or leased by the Company there a Person other than either Company. There are no leasesActions pending nor, tenanciesto the Seller’s Knowledge, licenses threatened against or affecting the Real Property or any portion thereof or interest therein in the nature or in lieu of condemnation or eminent domain proceedings. All water, sewer, gas, electric, telephone, cable and drainage facilities and all other rights utilities and public or quasi-public improvements are, to the extent applicable, available to the Real Property. Neither Company has received any written notice of actual or, to the Seller’s Knowledge, threatened cancellation or suspension of any utility services or certificate of occupancy or use for any portion of the Real Property. Neither Company has received any notice of actual or, to the Seller’s Knowledge, threatened special assessments or reassessments of the Real Property. All contractors, subcontractors, suppliers, architects, engineers, and others who have performed services, labor, or supplied material at the instance of either Company in connection with either Company’s acquisition, development, ownership, operation, maintenance, repair or management of any Real Property, and whose lien rights, if any, have not expired, will have been paid in full as of the Closing Date to the extent such payment is due and payable prior to or on the Closing Date. There is unobstructed and adequate means of ingress and egress to and from the Real Property from all abutting streets, roads and highways. No Person is in possession or occupancy of the Real Property or any part thereof, and no Person Persons have possessory or entity other rights or claims with respect to the Real Property or any part thereof other than pursuant to the Existing Leases. The Real Property is zoned to permit the operation of the facility as it is currently operated without any variances or conditions in connection therewith. To Seller’s Knowledge, there are no violations of any building codes or other ordinances affecting the Real Property. Neither Company occupies has received written notice from any Governmental Authority requiring any work, repairs, construction, alterations or uses installations on or in connection with the Real Property, or asserting any violation of any federal, state, county or municipal laws, ordinances, codes, orders, regulations or requirements affecting any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, which requirement or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliateviolation remains uncured. Except as set forth on disclosed in Section 4.09(f3.10(b) of the Disclosure Schedules, each of there are no management, leasing, service, employment or maintenance contracts relating to the Leases and Subleases are arm’s length transactions with unrelated third partiesReal Property which will not have been effectively terminated on or prior to the Closing Date.
Appears in 1 contract
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) The Bank and its Subsidiaries have good and valid (and, in the case of the Disclosure Schedules, the Company has not owned any Real Property.
(b, good and marketable fee simple) The Company has title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business since the Interim Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):following:
(i) those items set forth in Section 4.09(b2.19(a)(i) of the Bank Disclosure SchedulesSchedule;
(ii) liens Liens for Taxes accrued but not yet due and payable or being contested in good faith by appropriate procedures;
(iii) mechanics', carriers’, workmen’s, repairmen’s or other like liens Liens arising or incurred in the ordinary course of business;
(iv) servitudes, easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that do not adversely affect the operation of the business at the Real Property; orare properly recorded;
(v) liens other than with respect to owned Real Property, Liens arising under original purchase price conditional sales contracts Contracts and equipment leases Leases with third parties Third Parties entered into in the ordinary course of business;
(vi) those items that secure public or statutory obligations or any discount with, borrowing from, or obligations to any Federal Home Loan Bank, interbank credit facilities, or any transaction by the Bank’s Subsidiaries acting in a fiduciary capacity; or
(cvii) The real property at the addresses listed in other imperfections of title or encumbrances, if any, that have not had, and would not have, a Bank Material Adverse Effect.
(b) Section 4.09(c2.19(b) of the Bank Disclosure Schedules constitutes all Schedule lists: (i) the street address of the each parcel of owned Real Property and (ii) the street address of each parcel of leased by the Company Real Property, and listsa list, as of the date of this Agreement, of all leases (including the relevant addresses and parties) for the each parcel of leased Real Property involving total annual payments of at least $50,000 (collectively, the “Leases”). The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyer.
(d) Since the first date the Company occupied the Real Property, the Company has not received a notice that the Real Property is not, or has not been, in material compliance with all applicable building, zoning, subdivision and other land use Law affecting the Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business identification of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) lessee and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or costlessor thereunder.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.
Appears in 1 contract
Samples: Stock Purchase Agreement (First Bancshares Inc /MS/)
Title to Assets; Real Property. (a) Except as set forth on Section 4.09(a) of the Disclosure Schedules, the Company has not owned any Real Property.
(b) The Company has good and valid (and, in the case of owned Real Property, good and marketable fee simple) title to, or a valid leasehold interest in in, all leased Real Property and good and valid title to all tangible personal property and other assets reflected in the Audited Company Financial Statements or acquired after the Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(bSection 3.10(a) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate procedures;
(iii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business;
(iv) easements, rights of way, zoning ordinances and other similar encumbrances affecting leased Real Property that do not adversely affect the operation of the business at the Real Property; or;
(v) other than with respect to owned Real Property, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business; or
(cvi) The real property at the addresses listed in other imperfections of title or Encumbrances, if any, that have not had, and would not have, a Material Adverse Effect.
(b) Section 4.09(c3.10(b) of the Disclosure Schedules constitutes all lists: (i) the street address of each parcel of owned Real Property; and (ii) the street address of each parcel of leased Real Property leased by the Company Property, and listsa list, as of the date of this Agreement, of all leases (including the relevant addresses and parties) for the each parcel of leased Real Property involving total annual payments of at least $100,000 (collectively, the “Leases”). The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting including the Real Property. The Leases afford the Company peaceful and undisturbed possession identification of the Real Property that is the subject matter of each respective Lease. Except for the occupancy lessee and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available to Buyerlessor thereunder.
(dc) Since The Company (or one of its subsidiaries) owns or has the first date the Company occupied the Real Propertyexclusive ability to access, including by use of “private keys” or other equivalent means, the Company has not received a notice that the Real Property is not(i) cash on hand, or has not been, cash held in material compliance with all applicable building, zoning, subdivision cryptocurrency wallets or similar mediums of custody for cryptocurrencies and other land use Law affecting the Real Property. The Company has not received written notice of any pending tokens and digital assets or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closingexchange accounts, (ii) cash equivalents, (iii) cryptocurrencies, tokens, digital assets and to Seller’s Knowledgeother asset equivalents and (iv) assets held in accounts other than any cryptocurrencies, none of such assets is currently tokens, digital asset and other asset equivalents, in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not each case in all material in nature or costrespects.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f) of the Disclosure Schedules, each of the Leases and Subleases are arm’s length transactions with unrelated third parties.
Appears in 1 contract
Samples: Securities Exchange Agreement (Ecoark Holdings, Inc.)
Title to Assets; Real Property. (a) Except as set forth The Company and the Subsidiaries of the Company have (i) good, valid and marketable title to (A) all Owned Real Property described on Section 4.09(a2.13(b) of the Disclosure Schedules, the Company has not owned any Real Property.
Schedule and (bB) The Company has a valid leasehold interest in all leased Real Property and good and valid title to all tangible personal property and other assets (excluding Intellectual Property) reflected in the Audited its respective Full-Year Financial Statements or acquired after the Reference Balance Sheet Date, other than properties personal property and assets sold or otherwise disposed of in the ordinary course Ordinary Course of business Business since the Reference Balance Sheet DateDate or that are leased, in which case the Company and the Subsidiaries of the Company have a valid leasehold interest in such assets and personal property and (ii) valid leasehold title in, and enjoy peaceful and undisturbed possession of, all Leased Real Property described on Section 2.13(c) of the Disclosure Schedule. There are no contractual or legal restrictions that preclude or restrict the ability of the Company or any Subsidiary of the Company to use each parcel of Real Property for the purposes for which it is currently used. All such properties Real Property, personal property and other assets (excluding Intellectual Property but including leasehold interestsand subleasehold interests in such personal property and other assets) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):
(i) those items set forth in Section 4.09(b) of the Disclosure Schedules;
(ii) liens for Taxes not yet due and payable or being contested in good faith by appropriate proceduresas of the Closing Date;
(iiiii) mechanics, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course Ordinary Course of businessBusiness for amounts that are not delinquent;
(iii) easements, covenants, restrictions, rights of way, zoning, land use and building laws, regulations and ordinances (but excluding violations thereof) and other similar encumbrances affecting the Real Property, which (1) are non-monetary in nature; (2) which are not, individually or in the aggregate, materially adverse to the Business of the Company and the Subsidiaries of the Company; (3) materially interfere with the present uses of occupancy of such Real Property by the owner or lessee thereof; or (4) render such Real Property unmarketable or uninsurable by a nationally recognized title insurance company;
(iv) easementsliens arising under equipment leases with third parties, rights copies of waywhich have been Made Available in the Data Room, zoning ordinances and other similar encumbrances affecting leased Real Property that do not adversely affect entered into in the operation Ordinary Course of Business;
(v) Leases;
(vi) those Encumbrances described on Section 2.13(a)(vi) of the business at the Real PropertyDisclosure Schedule;
(vii) Encumbrances arising under federal or state securities laws; or
(vviii) liens Encumbrances arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in from the ordinary course Organizational Documents of business; orthe Company or any of its Subsidiaries.
(cb) The real property at the addresses listed in Section 4.09(c2.13(b) of the Disclosure Schedules constitutes all Schedule sets forth a complete and accurate list of each Owned Real Property and lists, with respect to each such parcel of Owned Real Property, (i) the street address, (ii) the legal description, (iii) a reference to, and recording information for, the vesting deed, and (iv) the legal name of the record title owner. Each parcel of Owned Real Property leased is owned by the Company and lists, as or the applicable Subsidiary of the date of this Agreement, all leases (including the relevant addresses and parties) for the Real Property (collectively, the “Leases”)Company in fee simple. The Leases are legal, valid and binding and in full force and effect. The Company is not in default under any Lease. The Company has not received written notice of any existing or pending condemnation proceedings affecting the Real Property. The Leases afford the Company peaceful and undisturbed possession of the Real Property that is the subject matter of each respective Lease. Except for the occupancy and use of the Real Property by the Company there are no leases, tenancies, licenses or other rights of occupancy or use for any portion of the Real Property, and no Person or entity other than the Company occupies or uses any portion of the Real Property, except as set forth on Section 4.09(c2.13(b) of the Disclosure Schedules (the “Subleases”). True and complete copies of the Leases and Subleases have been made available Schedule also lists, with respect to Buyer.
(d) Since the first date the Company occupied the each Owned Real Property, all title insurance policies in effect and the Company has not received name of the insured under such title insurance policies as well as a notice that the Real Property is not, or has not been, in material compliance with list of all applicable building, zoning, subdivision and other land use Law affecting the surveys of each Owned Real Property. The Company has not received written notice of any pending or anticipated change in any such applicable Laws that would reasonably be expected to result in a material restriction upon the ownership, alteration, use, occupancy or operation of the Real Property. The Real Property comprises all of the real property used in the conduct of the business as currently conducted. The Real Property is sufficient as of the date hereof to permit the continued conduct of the business as conducted immediately prior to the date hereof and the Closing Date.
(e) All buildings, plants, structures, all furniture, fixtures, machinery, equipment, vehicles and other personal tangible assets owned, leased or used by the Company in the business and all structural, mechanical, and other physical systems located at the Real Property leased by the Company, including the walls, roofs, and structural elements thereof and the heating, ventilation, air-conditioning, plumbing, electrical, communications, mechanical, water, sewer, wastewater, storm water, paving, parking equipment, systems and facilities included therein are in normal operating condition and repair (ordinary wear and tear excepted) and are adequate to enable the business of the Company to be conducted immediately after the Closing in the same manner as the business of the Company has been conducted immediately prior to the Closing, (ii) and to Seller’s Knowledge, none of such assets is currently in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(f) Section 4.09(f) of the Disclosure Schedules sets forth each of the Leases (the “Affiliated Leases”) and Subleases (the “Affiliated Subleases”) by and between the Company and an Affiliate. Except as set forth on Section 4.09(f2.13(b) of the Disclosure SchedulesSchedule, neither the Company nor any Subsidiary of the Company has leased or otherwise granted to any Person the right to use or occupy any Owned Real Property. There are no outstanding options, rights of first offer or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein. Neither the Company nor any Subsidiary of the Company is a party to any agreement or option to purchase any real property or interest therein that has not previously closed. No written notice has been received by the Company or any Subsidiary of the Company from a mortgagee of the Owned Real Property asserting that a default or breach exists thereunder and which breach or default remains uncured.
(c) Section 2.13(c) of the Disclosure Schedule sets forth a complete and accurate list of each Leased Real Property and lists, with respect to each such Leased Real Property, (i) the Lease, (ii) the street address; (iii) the tenant, landlord, subtenant and sublandlord, as applicable, the rental amount currently payable, and the expiration of the term; (iv) the current use of such property; and (v) the guarantors of the Lease, if applicable. With respect to any assignment or sublease identified on Section 2.13(c) of the Disclosure Schedule, the consent of the landlord or prime landlord, as applicable, to such assignment or sublease, as applicable, was obtained (or will be obtained in connection with the consummation of the transactions contemplated by this Agreement) or was not required in connection with the granting of such assignment or sublease, as applicable. Each of the Leases is on arms’-length, third-party terms and is a valid, existing and binding obligation of the Company or the respective Subsidiary of the Company and, to the Knowledge of the Company, of each other party thereto, enforceable in accordance with its terms. The consummation of the transactions contemplated by this Agreement will not result in a breach or default under any of the Leases, give any party thereto the right to terminate any of the Leases, and upon the consummation of the transactions contemplated by this Agreement, each of the Leases will continue to be the valid, legal and Subleases binding obligation of the applicable parties thereto, enforceable by its terms. Neither the Company nor any Subsidiary of the Company has collaterally assigned or granted any security interest in any of the Leases or any interest therein. Possession and quiet enjoyment of the Leased Real Property under each Lease is not currently being disturbed, and there are arm’s length transactions no material disputes with unrelated third partiesrespect to any Lease. No security deposit or portion thereof deposited with respect to any Lease has been applied in respect of a breach or default under such Lease which has not been redeposited in full. Except as set forth on Section 2.13(c) of the Disclosure Schedule, neither the Company nor any Subsidiary of the Company has assigned the Leases or subleased, licensed, or otherwise granted any Person the right to use or occupy any Leased Real Property. Except as set forth on Section 2.13(c) of the Disclosure Schedule, (i) each of the Company and the Subsidiaries of the Company have performed all obligations required to be performed by it prior to the Closing Date under the Leases, and have not received any notice of default which remains uncured, and are not in breach or default thereunder, nor to the Knowledge of the Company has any event occurred which, with the giving of notice or the passage of time or both, would constitute a breach or default under the Leases; and (ii), to the Knowledge of the Company, the landlord under each Lease has complied with its duties and obligations in connection with such Lease.
(d) The Real Property constitutes all of the real property currently owned, leased, occupied, or otherwise utilized by the Company and the Subsidiaries of the Company in connection with the Business. The improvements on each parcel of Real Property are supplied with utilities and other services necessary for the operation thereof as the same is currently operated and the Real Property has unrestricted access to a public road. There are no Actions pending nor, to the Knowledge of the Company, threatened against or affecting the Real Property in the nature or in lieu of condemnation or eminent domain proceedings. There has been no material destruction, damage or casualty with respect to any Real Property. Neither the Company nor any Subsidiary of the Company has been informed in writing that the Real Property is not in compliance in all material respects with all applicable Laws or that all necessary permits have not been obtained. Neither the Company nor any Subsidiary of the Company has received notice that the current use or occupancy of the Real Property or the operation of the Business at the Real Property as currently conducted thereon violates any easement, covenant, condition, restriction or similar provision in any instrument of record or other unrecorded agreement affecting the Real Property. Pursuant to any Contract currently in effect, neither the Company nor any Subsidiary of the Company owes, or will owe in the future, any brokerage commissions or finders’ fees with respect to the sale or lease of the Real Property.
(e) The Company has Made Available true, correct and complete copies of all (i) Leases and any amendments thereof pertaining to the ownership or use of the Real Property or any part thereof and (ii) real estate documentation for the Owned Real Property, including deeds, mortgages, and title policies, each of which are in the possession or control of the Company and the Subsidiaries of the Company. Except for the foregoing materials, there are no documents in the possession or control of the Company and the Subsidiaries of the Company or of which the Company or any Subsidiary of the Company is aware which contain information relating in a material manner to any Real Property.
Appears in 1 contract
Samples: Merger Agreement (DCP Holding CO)
