Title to Real Property Except as set forth on Asset Disclosure Schedule 4.9:
(a) The Assets include and constitute all real property owned by EQT Gathering that relates to the gas gathering systems referred to by EQT Gathering as the “Mercury-Pandora-Pluto-Saturn Gas Gathering System” and “WG-100 Gas Gathering System.”
(b) As of the date hereof, EQT Gathering has good, valid and indefeasible title to the Assets owned by it which constitute real property and are designated as such in Exhibit A-2 or Exhibit A-3 hereto (the “Real Property Assets”), free and clear of all Liens (other than Permitted Liens). EQT Gathering has made available to EQM and/or EQM Gathering Opco true, correct and complete copies of all material agreements relating to the Real Property Assets, including all modifications, amendments, supplements, waivers, side letters thereto, title abstracts, title opinion letters and the like (collectively, the “Real Property Agreements”). All Real Property Agreements (i) are valid and enforceable, except as the enforceability thereof may be affected by bankruptcy, insolvency or other similar laws of general applicability affecting the rights of creditors generally or principles of equity and (ii) grant all the material rights purported to be granted thereby, except where the failure of any such Real Property Agreement to be valid and enforceable or to grant the rights purported to be granted thereby would not reasonably be expected to have a Gathering System Material Adverse Effect with respect to the Real Property Assets.
(c) No event of default by EQT Gathering presently exists under any material Real Property Agreement. EQT Gathering has not received notice of default under any material Real Property Agreement and to the Knowledge of EQT Gathering, no event of default exists under any material Real Property Agreement. EQT Gathering has fulfilled and performed all its material obligations with respect to all material Real Property Agreements. No event has occurred that allows, or after notice or lapse of time would allow revocation or termination of any material Real Property Agreement or would result in any impairment of any material rights of a holder under any Easements, rights of way, memorandum of easements, permits, servitudes, licenses, leasehold estates, including, without limitation, leases, subleases and occupancy agreements, any instruments creating an interest in real property, and similar rights related to the Real Property used in connection with EQT Gathering’s business.
(d) To the Knowledge of EQT Gathering, there is no action pending or threatened for eminent domain or for condemnation of any material Real Property Asset, by any Governmental Authority or other Person.
(e) EQT Gathering has no Knowledge, and EQT Gathering has not received any written notice that remains outstanding as of the date of this Agreement that the current use and occupancy of any material Real Property Asset is in violation of any of the recorded covenants, conditions, restrictions, reservations, Easements or agreements applicable to such Real Property Asset.
(f) EQT Gathering has not received any written notice of, nor to the Knowledge of EQT Gathering, has a request or demand been otherwise made for, EQT Gathering to undertake renovations, repairs or construction work at any portion of the material Real Property Assets that constitute Operational Assets and to the Knowledge of EQT Gathering, there is currently no need to undertake renovations, repairs or construction work at any portion of the material Real Property Assets that constitute Operational Assets. EQT Gathering has all rights necessary to effectuate any such repairs, replacements, alterations or maintenance that may be currently necessary for the operation and use of the pipelines, equipment and compressors located on the Real Property Assets owned by it.
(g) The Real Property Assets include (i) all real property that is necessary for the operation of the Operational Assets in substantially the same manner as currently being conducted and (ii) the real property upon which the compressors are located (in each case as generally depicted on Exhibit A-1).
Title to Properties; Leases Except as indicated on Schedule 7.3 hereto, the Borrower and its Subsidiaries own all of the assets reflected in the consolidated balance sheet of the Borrower and its Subsidiaries as at the Balance Sheet Date or acquired since that date (except property and assets sold or otherwise disposed of in the ordinary course of business since that date), subject to no rights of others, including any mortgages, leases, conditional sales agreements, title retention agreements, liens or other encumbrances except Permitted Liens.
Real Estate Leases (a) Neither BGH Holdings nor BRH Holdings leases any real estate. Seller does not own or lease any real estate used in connection with the businesses of BGH Holdings, BRH Holdings, or the Companies.
(b) Schedule 4.16 sets forth a list of all of the leases or rights of occupancy pursuant to which the Companies (or any of them) lease or sublease any real property or interest therein (collectively, the "Leases"), including the identification of each of the Lessors thereof and the street addresses of the real estate demised under any of the Leases (collectively, the "Leased Real Estate"). Except as set forth in Schedule 4.16, one or more of the Companies is the lessee under all Leases, and no party other than one or more of the Companies has any right to possession, occupancy or use of any of the Leased Real Estate. A true and correct copy of each of the Leases has been delivered to Buyer, together with all amendments and modifications thereto, and no changes, amendments or modifications have been made thereto since the date of such delivery, except as permitted by Section 3.02 (k). Each of the Leases is valid and is in full force and effect and is binding and enforceable in accordance with its terms except to the extent such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the enforcement of creditors' rights or by general equitable principles. Except as set forth in Schedule 4.16, none of the Companies is in default (after expiration of applicable cure or grace periods) under any provision of any of the Leases, the failure of which to perform would permit the lessor thereunder to terminate such Lease, and, to Seller's knowledge, no event has occurred which (with or without notice, lapse of time or both) would render any of the Companies in default under any of such provisions which default would permit the lessor thereunder to terminate such Lease. To the knowledge of Seller, BRH Holdings, BGH Holdings, or the Companies, no other party to any of the Leases is in default under any of the material commitments and obligations thereof, and no event has occurred which (with or without notice, lapse of time or both) would render any such other party in default under any of such provisions.
(c) Except as set forth in Schedule 4.16, the Companies are in actual possession of the Leased Real Estate. Except as set forth in Schedule 4.16, the Companies have good and valid title to all the leasehold estates conveyed under the Leases free and clear of all Liens except for (i) (A) those provided under the relevant lease; (B) matters shown on Schedule 4.16; and (C) defects of title, conditions, easements, covenants or restrictions, if any, none of which items referred to clauses (A), (B) or (C) above is substantial in amount, and none of which, individually or in the aggregate, materially impairs or grants or evidences rights which, if exercised, would materially impair the current use of the affected property in the manner such property is currently being used by the Companies, or impairs the operations of any of the Companies; (ii) zoning or land use ordinances, none of which, to Seller's knowledge, individually or in the aggregate, materially impairs the use of the affected property in the manner such property is currently being used, or impairs the current operations of any of the Companies; and (iii) liens for taxes not yet due and payable (iv) any mortgage liens granted by any lessor under any of the Leases of the lessor's interest in the underlying real estate or the Leases. To Seller's knowledge, none of the Companies has received written notice of any violation of or non-conformity with any zoning, subdivision, wetlands or other similar law, code, rule, regulation or ordinance from any governmental authority with respect to any of the Leased Real Estate, or of any condemnation action, eminent domain proceeding or other litigation concerning any of such properties.
(d) Except as set forth in Schedule 4.16, the basic rent, all additional rent and all other charges and amounts payable under the Leases have been paid to date and not more than one month in advance. All work required to be performed under the Leases by the landlords thereunder or by any of the Companies have been performed, and, to the extent that any of the Companies is responsible for payment of such work, has been fully paid for, whether directly to the contractor performing such work or to such landlord as reimbursement therefor, except for items which any of the Companies is disputing in good faith (which items are set forth in Schedule 4.16).
(e) Except as set forth on Schedule 4.16, there are no brokerage commissions or finder's fees due from Seller or any of the Companies which are unpaid with regard to any of the Leases or the Leased Real Estate or which will become due at any time in the future with regard to the Leases or the Leased Real Estate.
(f) Except as set forth in Schedule 4.16, there have been no casualties which are reasonably likely to result in the termination of any of the Leases or the exercise of any buy-out provision contained in any of the Leases relative to damage by casualty.
(g) Except as set forth on Schedule 4.16, (i) no consent of any of the lessors under any of the Leases is required by reason of any of the transactions contemplated by this Agreement, and (ii) none of the rights of any of the Companies under any of the Leases will be impaired by the consummation of the transactions contemplated by this Agreement and all of such rights will be enforceable by the Companies after the Closing Date without the consent or agreement of any other party, including all rights to purchase any of the Leased Real Estate or to renew any of the Leases pursuant to options to purchase or renew contained in any of the Leases. Any lessor under any of the Leases whose consent or agreement is required is identified as such on Schedule 4.16.
Title to Real and Personal Property The Company and its subsidiaries have good and marketable title in fee simple (in the case of real property) to, or have valid and marketable rights to lease or otherwise use, all items of real and personal property and assets that are material to the respective businesses of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries or (ii) could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
Utility Easements There is hereby reserved for the use and benefit of the Association and all Owners, non-exclusive easements within the Common Areas for the location, installation and maintenance of utilities and drainage facilities of convenience or necessity as may be requested or required by the Association or any Owner provided that the grant thereof does not unreasonably interfere with the normal operation, improvement, and use of the Common Area and the buildings constructed within the Center, and no affirmative monetary obligation is imposed upon the Owners (other than the Owner benefiting from such easement). The Declarant (and the Board where there no longer is a Declarant) shall have the authority to grant easements or rights-of-way for utilities over the Common Areas as necessary to serve the Common Areas and/or the Parcels. The Owner of any Parcel and any of his Occupants or licensees shall have the right at all reasonable times to enter upon the land subject to said easements and to install, maintain, operate, repair and service utilities and drainage facilities thereon for the use and benefit of his Parcel; provided, however, any such Person shall restore said land, at his own expense, as nearly as practicable, to the same condition as existed prior to such entry and shall comply with the provisions of Section 11.6. The Owner of any Parcel shall have the right to assign the benefit and use of any such easement to any public or private utility company, agency or district for the purpose of installing, operating, repairing, servicing and maintaining utilities or drainage facilities and enforcing the easement rights. For purposes hereof, "utilities" shall include electricity, gas mains and lines, water distribution lines, storm water sewers, sanitary sewers, telephone, fiberoptic, cable TV, and telegraph cables and lines, and other similar or related facilities commonly regarded as utilities. All storm drains, utility lines, transformers and meters shall be maintained under the terms of this Declaration in a safe and good working condition by the party responsible therefor. No grantee of a utility easement shall in the use, construction, reconstruction, operation, maintenance or repair of any storm drains, utility lines, transformers and meters in any way interfere, obstruct or delay the business of the grantor of said easement or any other Owner or Occupant, or the public access to and from said business or interfere, obstruct or delay in any way the receiving of merchandise by said grantor or any Owner or Occupant. EXHIBIT F -35- PEREGRINE SYSTEMS CORPORATE CENTER [Peregrine Systems]
Title to Property; Leases The Company and its Subsidiaries have good and sufficient title to their respective properties that individually or in the aggregate are Material, including all such properties reflected in the most recent audited balance sheet referred to in Section 5.5 or purported to have been acquired by the Company or any Subsidiary after said date (except as sold or otherwise disposed of in the ordinary course of business), in each case free and clear of Liens prohibited by this Agreement. All leases that individually or in the aggregate are Material are valid and subsisting and are in full force and effect in all material respects.
Title to Properties The Company and each Subsidiary have good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of their respective businesses, except for such defects in title as could not, individually or in the aggregate, have a Material Adverse Effect. As of the Closing Date, the property of the Company and its Subsidiaries is subject to no Liens, other than Permitted Liens.
Real Property; Leasehold Neither the Company nor any of its Subsidiaries owns or has ever owned any real property. The Company has made available to Parent (a) an accurate and complete list of all real properties with respect to which the Company directly or indirectly holds a valid leasehold interest as well as any other real estate that is in the possession of or leased by the Company or any of its Subsidiaries, and (b) copies of all leases under which any such real property is possessed (the “Company Real Estate Leases”), each of which is in full force and effect, with no existing material default thereunder. The Company’s use and operation of each such leased property conforms to all applicable Laws in all material respects, and the Company has exclusive possession of each such leased property and has not granted any occupancy rights to tenants or licensees with respect to such leased property. In addition, each such leased property is free and clear of all Encumbrances other than Permitted Encumbrances.
Real Estate Matters (a) Purchaser, at its sole cost and expense, may order title policy Commitments (the “Commitments”) to be issued by a title company reasonably acceptable to Purchaser (the “Title Company”), accompanied by copies of all recorded documents relating to restrictions, easements, rights-of-way, and other matters affecting the Fee Owned Property or the leased Restaurant locations that are not located in lifestyle centers, office developments, condominium developments or major retail developments (the “Leased Locations”). The Commitments will commit the Title Company to issue at the Closing, ALTA form of Title Insurance Policies to Purchaser, such policies to be in an amount as determined jointly by Purchaser and the Title Company and with such endorsements as are requested by Purchaser. Purchaser, at its sole cost and expense, may also obtain one of more surveys of the Fee Owned Property and the Leased Locations at Purchaser’s expense (the “Surveys”). Purchaser shall promptly, but not later than forty five (45) days following the date of this Agreement, notify the Seller in writing of objections to the condition of title set forth in the Commitments or on the Surveys which materially affect the merchantability of 1245 Properties’ title or the use of the Fee Owned Property or Seller’s use of the Leased Locations as presently utilized and do not constitute Permitted Liens (the “Title Objections”).
(b) Seller may voluntarily undertake to eliminate any and all of the Title Objections to the satisfaction of Purchaser, but the Seller is under no obligation to do so. If, however, the Seller elects not to, or cannot, eliminate the Title Objections to the reasonable satisfaction of Purchaser prior to the Closing Date and the Title Objections constitute a Material Adverse Effect, Purchaser may terminate this Agreement, within five (5) business days following Seller’s notice that it will not or cannot eliminate such Title Objections, pursuant to Section 9.3 hereof without further liability to Purchaser or Seller. If the Title Objections do not constitute a Material Adverse Effect, Purchaser’s obligation to close shall nevertheless remain subject to the conditions set forth in Section 8.1 including Section 8.1(g).
(c) All title matters shown on the Commitments and the Surveys which are not the subject of Title Objections shall be deemed to be Permitted Liens. Further, if Purchaser makes any Title Objections which Seller elects not to, or cannot, cure, and Purchaser elects to proceed to Closing on the Closing Date, such Title Objections shall likewise be deemed Permitted Liens.
Title to Properties; Encumbrances Sellers have delivered or made available to Buyer copies of the deeds and other instruments (as recorded) by which each Acquired Company acquired all real property, leaseholds, or other interests owned by it, and copies of all title insurance policies, opinions, abstracts, and surveys in the possession of Sellers or each Acquired Company and relating to such property or interests. Each Acquired Company owns (with good and marketable title in the case of real property, subject only to the matters permitted by the following sentence) all the properties and assets (whether real, personal, or mixed and whether tangible or intangible) that they purport to own located in the facilities owned or operated by such Acquired Company or reflected as owned in the books and records of such Acquired Company, including all of the properties and assets reflected in the Latest Balance Sheet (except for personal property sold since the date of the Latest Balance Sheet, as the case may be, in the Ordinary Course of Business), and all of the properties and assets purchased or otherwise acquired by each Acquired Company since the date of the Latest Balance Sheet (except for personal property acquired and sold since the date of the Balance Sheet in the Ordinary Course of Business and consistent with past practice). All material properties and assets reflected in the Latest Balance Sheet are free and clear of all Encumbrances and are not, in the case of real property, subject to any rights of way, building use restrictions, exceptions, variances, reservations, or limitations of any nature except, with respect to all such properties and assets, (a) mortgages or security interests shown on the Latest Balance Sheet as securing specified liabilities or obligations, with respect to which no default (or event that, with notice or lapse of time or both, would constitute a default) exists, (b) mortgages or security interests incurred in connection with the purchase of property or assets after the date of the Latest Balance Sheet (such mortgages and security interests being limited to the property or assets so acquired), with respect to which no default (or event that, with notice or lapse of time or both, would constitute a default) exists, (c) liens for current taxes not yet due, and (d) with respect to real property, (i) minor imperfections of title, if any, none of which is substantial in amount, materially detracts from the value or impairs the use of the property subject thereto, or impairs the operations of each Acquired Company, and (ii) zoning laws and other land use restrictions that do not impair the present or anticipated use of the property subject thereto. All buildings, plants, and structures owned by each Acquired Company lie wholly within the boundaries of the real property owned by each Acquired Company and do not encroach upon the property of, or otherwise conflict with the property rights of, any other Person.
