Common use of Title to Assets; Sufficiency of Assets Clause in Contracts

Title to Assets; Sufficiency of Assets. (a) Except as would not, individually or in the aggregate, reasonably be expected to be materially adverse to the SLS Business or to the SLS Entities, taken as a whole, Scotts and its Subsidiaries (including the SLS Entities) have (and as of the Closing the SLS Entities themselves will have, other than with respect to rights or assets (x) to be provided (or for which the benefit is to be provided) to the SLS Entities by Scotts and the Non-SLS Subsidiaries pursuant to the Ancillary Agreements, (y) that are (or for which the benefit is), between the date hereof and the Closing Date, offered in writing to the Chief Financial Officer of TruGreen Holdings to be provided by Scotts for inclusion in any such Ancillary Agreement but which TruGreen Holdings has notified Scotts in writing that it will not require (or fails to reply on a reasonably timely basis) pursuant to any such Ancillary Agreement (the “Declined Services”) or (z) pursuant to or under Shared Contracts) good and valid (and, in the case of SLS Owned Real Property, good, valid and marketable fee simple) title to, or have a valid leasehold or licensed interest in, or has a legal right to use, all of the tangible and intangible assets, properties and rights (real and personal, including all Intellectual Property) that (i) are primarily used or held for use in connection with the SLS Business, (ii) are reflected on the SLS Financial Statements or (iii) were acquired by the SLS Business after the Balance Sheet Date for use primarily by, or in connection with, the SLS Business, in each case other than the Scotts Marks (collectively, the “SLS Assets”), in each case, free and clear of all Encumbrances, except for Permitted Encumbrances, other than any SLS Assets disposed of by the SLS Entities or the SLS Business (x) after the Balance Sheet Date and prior to the date hereof in the ordinary course of business or (y) after the date hereof and not in violation of this Agreement.

Title to Assets; Sufficiency of Assets. (a) Except as would notnot reasonably be expected, individually or in the aggregate, reasonably be expected to have a material effect on the Acquired Companies, and except (a) for Permitted Liens, (b) as set forth on Section 4.17 of the Company Disclosure Schedule and (c) for the services to be materially adverse provided (whether or not utilized) by Seller (or its applicable Affiliates) pursuant to the SLS Business Transition Services Agreement, as of the Closing, the Acquired Companies will have good and valid title to, or valid leases, licenses or rights to use, all assets that are material to conduct the SLS Entitiesbusiness of the Acquired Companies, taken as a whole, Scotts in substantially the same manner as it is currently conducted. To the Knowledge of Seller, Section 4.17 of the Company Disclosure Schedule sets forth a complete list of all equipment and its Subsidiaries (including rolling stock of the SLS Entities) have (and Acquired Companies as of January 31, 2020. Except as would not reasonably be expected, individually or in the Closing aggregate, to have a material effect on the SLS Entities themselves will haveAcquired Companies, other than with respect to rights or assets and except (xa) as set forth on Section 4.17 of the Company Disclosure Schedule and (b) for the services to be provided (whether or for which the benefit is to be providednot utilized) to the SLS Entities by Scotts and the Non-SLS Subsidiaries Seller (or its applicable Affiliates) pursuant to the Ancillary AgreementsTransition Services Agreement, as of the Closing, the assets of the Acquired Companies shall, in the aggregate, constitute all of the assets necessary to conduct the business of the Acquired Companies, taken as a whole, in substantially the same manner as it is currently conducted as of the date hereof. Except as would not reasonably be expected, individually or in the aggregate, to have a material effect on the Acquired Companies, the machinery, equipment, leasehold improvements and other tangible assets that the Acquired Companies own or lease are in good operating condition and repair (ysubject to normal wear and tear) that and are suitable for the purposes for which they are presently used. For the avoidance of doubt, the representations and warranties in this Section 4.17 shall not apply to, and the assets referred to herein shall not include, any rights in any real property, or real property assets, regardless whether such rights or assets are (or for which are purported to be) owned, leased, vested or unvested, and whether created by deed, contract, easement, license, patent or otherwise. Customers and Suppliers . Section 4.18 of the benefit is), between Company Disclosure Schedule sets forth the date hereof and ten (10) largest customers (by total aggregate revenue received by each of the Closing Date, offered in writing to the Chief Financial Officer of TruGreen Holdings to be provided by Scotts for inclusion in any such Ancillary Agreement but which TruGreen Holdings has notified Scotts in writing that it will not require (or fails to reply on a reasonably timely basisAcquired Companies) pursuant to any such Ancillary Agreement (the “Declined ServicesSignificant Customers”) or and the ten (z10) pursuant largest suppliers (by total aggregate spend amounts paid to or under Shared Contracts) good and valid (and, in the case of SLS Owned Real Property, good, valid and marketable fee simple) title to, or have a valid leasehold or licensed interest in, or has a legal right to use, all of the tangible and intangible assets, properties and rights (real and personal, including all Intellectual Property) that (i) are primarily used or held for use in connection with the SLS Business, (ii) are reflected on the SLS Financial Statements or (iii) were acquired by the SLS Business after the Balance Sheet Date for use primarily such suppliers by, or in connection withon behalf of, each of the SLS Business, in each case other than the Scotts Marks Acquired Companies) (collectively, the “SLS AssetsSignificant Suppliers”), in each case, free and clear of all Encumbrancesthe Acquired Companies for the twelve (12)-month period ending on December 31, except for Permitted Encumbrances2019. As of the date hereof, other than any SLS Assets disposed of by the SLS Entities or the SLS Business (x) after the Balance Sheet Date and prior to the date hereof in Knowledge of Seller, no Significant Customer or Significant Supplier has cancelled or otherwise terminated, or, to the ordinary course Knowledge of business Seller, threatened, to cancel or (y) after the date hereof and not in violation of this Agreementotherwise to terminate, its relationship with any Acquired Company.

Title to Assets; Sufficiency of Assets. Except as set forth in Schedule 4.3, the Company or its applicable Subsidiary owns or leases (absent any defaults under any such lease by the Company or, to the Knowledge of the Company, any third parties (and no event has occurred that with the lapse of time or the giving of notice, or both, would constitute such a default)) all tangible personal property, including all buildings, machinery, equipment, and all other material tangible assets, used by it in connection with its business as presently conducted, in each case, free and clear of any Encumbrance, except for Encumbrances for (a) Except as would notTaxes, individually assessments and similar charges not yet due and payable or contested in the aggregate, reasonably be expected to be materially adverse to the SLS Business or to the SLS Entities, taken as a whole, Scotts good faith by appropriate proceedings and its Subsidiaries (including the SLS Entities) have (and as of the Closing the SLS Entities themselves will have, other than with respect to rights or assets (x) to be provided (or for which adequate reserves in accordance with GAAP have been established in the benefit is to be provided) to the SLS Entities by Scotts and the Non-SLS Subsidiaries pursuant to the Ancillary AgreementsFinancial Statements, (y) that are (or for which the benefit is), between the date hereof and the Closing Date, offered in writing to the Chief Financial Officer of TruGreen Holdings to be provided by Scotts for inclusion in any such Ancillary Agreement but which TruGreen Holdings has notified Scotts in writing that it will not require (or fails to reply on a reasonably timely basis) pursuant to any such Ancillary Agreement (the “Declined Services”) or (zb) pursuant to mechanic’s, material men’s, contractor’s, repairman’s or under Shared Contracts) good similar liens arising in the ordinary course of business, consistent with past practice. Such property and valid (andassets are in satisfactory operating condition and free from defects, in each case, subject to ordinary wear and tear, and are suitable for the case of SLS Owned Real Property, good, valid purposes used. Such property and marketable fee simple) title to, or have a valid leasehold or licensed interest in, or has a legal right to use, assets constitute all of the tangible and intangible assets, properties and rights (real and personal, including all Intellectual Property) that (i) are primarily assets used or held for use in connection with the SLS Businessbusiness of the Company and its Subsidiaries during the past twelve months (except Cash and Cash Equivalents disposed of, (ii) are reflected on the SLS Financial Statements accounts receivable collected, prepaid expenses realized, Contracts fully performed, and properties or (iii) were acquired assets sold or replaced by the SLS Business after the Balance Sheet Date for use primarily by, equivalent properties or in connection with, the SLS Businessassets, in each case other than the Scotts Marks (collectively, the “SLS Assets”), in each case, free and clear of all Encumbrances, except for Permitted Encumbrances, other than any SLS Assets disposed of by the SLS Entities or the SLS Business (x) after the Balance Sheet Date and prior to the date hereof in the ordinary course of business). The assets of the Company and its Subsidiaries constitute all of the assets necessary to conduct the business of the Company and its Subsidiaries as conducted as of the date of this Agreement and to permit the Surviving Company and its Subsidiaries to conduct such businesses after the Effective Time in the same manner as such businesses are currently conducted and will have been conducted immediately prior to the Effective Time. There has not occurred and, to the Knowledge of the Company, there is not expected to occur any circumstance or event that would (a) cause any asset of the Company or any of its Subsidiaries to cease to be owned or leased (as applicable) by the Company prior to the Effective Time or cease to be owned or leased (as applicable) by the Surviving Company immediately after the Effective Time; or (yb) after interfere with the date hereof and not in violation current use, occupancy or operation of this Agreementany such asset.

Title to Assets; Sufficiency of Assets. (a) Except as would not, individually or in the aggregate, reasonably be expected to be materially adverse to the SLS Business or to the SLS Entities, taken as a whole, Scotts and its Subsidiaries (including the SLS Entities) have (and as of the Closing the SLS Entities themselves will have, other than with respect to rights or assets (x) to be provided (or for which the benefit is to be provided) to the SLS Entities by Scotts and the Non-SLS Subsidiaries pursuant to the Ancillary Agreements, (y) that are (or for which the benefit is), between the date hereof and the Closing Date, offered in writing to the Chief Financial Officer of TruGreen Holdings to be provided by Scotts for inclusion in any such Ancillary Agreement but which TruGreen Holdings Each Seller has notified Scotts in writing that it will not require (or fails to reply on a reasonably timely basis) pursuant to any such Ancillary Agreement (the “Declined Services”) or (z) pursuant to or under Shared Contracts) good and valid (and, in the case of SLS Owned Real Property, good, valid and marketable fee simple) title to, or have a valid leasehold or licensed interest in, or has a legal right to use, all of the tangible and intangible assets, properties and rights (real assets included in the Circles Purchased Assets and personal, including all Intellectual Property) in the CVG Purchased Assets that (i) are primarily used or held for use in connection with it is conveying pursuant hereto. Subject to entry of the SLS Business, (ii) are reflected on Sale Order and upon the SLS Financial Statements or (iii) were acquired consummation of the transactions contemplated hereby and by the SLS Business after the Balance Sheet Date for use primarily by, or in connection withTransaction Documents, the SLS BusinessPurchasers shall acquire title to all of the Purchased Assets, as set forth in each case other than the Scotts Marks (collectively, the “SLS Assets”), in each caseSection 2.1, free and clear of all EncumbrancesLiens other than Permitted Liens. Except for the Excluded Assets set forth in Section 2.2(a) and Section 2.2(f), except the Purchased Assets (taken as a whole) are sufficient for Permitted Encumbrancesthe continued conduct of the Business after the Closing in substantially the same manner as conducted as of the date hereof (subject to any Excluded Contracts that the Purchasers elect not to acquire as provided in Section 2.3(d)); provided that the Circles Purchased Assets are sufficient for the continued conduct and operations of the MVNE Business after the Closing in substantially the same manner as conducted as of the date hereof; provided, further notwithstanding the foregoing, the foregoing representation regarding the Circles Purchase Assets does not take into account any transition services agreement, shared services agreement, or similar agreement that may exist between Circles and CVG. The Purchased Assets constitute all of the material rights, property and assets necessary to conduct the Business as conducted as of the date hereof (subject to any Excluded Contracts that the Purchasers elect not to acquire as provided in Section 2.3(d)). Except for the Excluded Assets set forth in Section 2.2(a), Section 2.2(e) and Section 2.2(f), none of the Excluded Assets are material to or necessary for the conduct of the Business. The Purchased Assets include all material books and records owned, primarily used or primarily held for use by any Seller with respect to the Business. No Affiliate of any Seller that is not a Seller under this Agreement has any right, title or interest in, to or under any properties, assets and rights primarily used in, or primarily held for use in, the Business, other than immaterial assets, and no Seller or Affiliate of any SLS Assets disposed Seller has any claim against the Business or any Seller in respect of by the SLS Entities or the SLS Business (x) after the Balance Sheet Date and prior to the date hereof in the ordinary course of business or (y) after the date hereof and not in violation of this AgreementBusiness.