Real Property; Leasehold (a) No Acquired Corporation owns any, nor has any Acquired Corporation ever owned any, real property, nor is any Acquired Corporation party to, or bound by, any Contract to purchase or sell any real property.
(b) Part 3.8(b) of the Disclosure Schedule sets forth a list of each lease, sublease or other Contract pursuant to which any of the Acquired Corporations leases real property from any other Person (such leases, subleases or other Contracts required to be listed thereon, the “Company Leases”). (All real property leased to the Acquired Corporations, including all buildings, structures, fixtures and other improvements leased to the Acquired Corporations, is referred to as the “Leased Real Property”). The present use and operation of the Leased Real Property is authorized by, and is in compliance in all material respects with, all applicable zoning, land use, building, fire, health, labor, safety and Environmental Laws and other Legal Requirements. There is no Legal Proceeding pending, or, to the knowledge of the Company, threatened, that challenges or adversely affects, or would challenge or adversely affect, the continuation of the present ownership, use or operation of any Leased Real Property. To the knowledge of the Company, there is no existing plan or study by any Governmental Body or by any other Person that challenges or otherwise adversely affects the continuation of the present ownership, use or operation of any Leased Real Property. There are no subleases, licenses, occupancy agreements or other contractual obligations that grant the right of use or occupancy of any of the Leased Real Property to any Person other than the Acquired Corporations, and there is no Person in possession of any of the Leased Real Property other than the Acquired Corporations. Each of the Acquired Corporations has complied in all material respects with the terms of all Company Leases relating to the Leased Real Property, and all such Company Leases are in full force and effect in all material respects. To the knowledge of the Company, the Leased Real Property is in good operating condition and repair. The Company has Made Available to Parent true, correct and complete copies of all Company Leases. No Acquired Corporation is party to any Contract or, to the knowledge of the Company, subject to any claim that may require the payment of any real estate brokerage commissions, and no commission is owed with respect to any of the Leased Real Property. The Leased Real Property constitutes all real property used in or necessary to conduct the business of each Acquired Corporation as currently being conducted.
Title to Real Property (a) Purchaser agrees to notify Seller in writing (a "TITLE DEFECT NOTICE") no later than sixty (60) days after the date hereof of any mortgages, pledges, liens, encumbrances, reservations, encroachments, overlaps or other title defects related to any Real Property as to which Purchaser objects (the "TITLE DEFECTS"), provided that the Title Defects and the Title Defect Notice shall not include or refer to any Permitted Encumbrances. If Seller shall timely receive any Title Defect Notice with respect to any Real Property, then Seller shall, at its option and in its sole discretion, elect to take one of the following actions with respect to each Title Defect referenced in such Title Defect Notice: (1) cure or eliminate such Title Defect prior to the Closing, in which event the Closing shall proceed with respect to the Real Property subject to such Title Defect without any reduction in the applicable Property Price; (2) accept a reduction in the Property Price applicable to the Real Property subject to such Title Defect equal to any applicable Defect Reduction Amount to reflect the greater of the diminution in value (if any) resulting from such Title Defect or the cost of curing such Title Defect, if applicable, as determined pursuant to Section 2.8; or (3) lease to Purchaser the Real Property subject to such Title Defect in accordance with the provisions of Section 2.4(c); provided, however, that if Seller chooses to rely upon clause (3) and any such Title Defect interferes in any material respect with the use of the applicable Real Property operated in the manner in which it is currently operated, then Purchaser shall not be obligated to lease the Real Property subject to such Title Defect and Purchaser shall have the option to elect either (i) to cause Seller to elect clause (1) with respect to such Real Property or (ii) to not acquire such Real Property and not pay the Property Price applicable to such Real Property. For purposes of this Section 2.4, a Title Defect shall be deemed to have been "cured" or "eliminated" if title insurance coverage or a bond reasonably acceptable to Purchaser shall have been obtained against such Title Defect.
(b) Purchaser shall have the right to obtain an updated title search or survey not less than thirty (30) days prior to the anticipated Closing Date to determine whether any title changes may have arisen between the effective date of the applicable title commitment and such update (an "UPDATED TITLE REPORT"). If such Updated Title Report indicates that any Title Defects have been placed of record in respect of any Real Property since the effective date of the applicable title commitment, then Purchaser shall have the right to provide Seller a Title Defect Notice in respect thereof not more than five (5) Business Days following Purchaser's receipt of such Updated Title Report, and thereafter Seller shall have the right to address such Title Defect Notice in the same manner as is set forth in Section 2.4(a) with respect to Title Defect Notices received by Seller within sixty (60) days after the date hereof (by electing to cure the Title Defect in question, accept a reduction in the applicable Property Price or lease the Real Property in question, all as more particularly set forth in Section 2.4(a)).
(c) If pursuant to Section 2.4(a), Section 2.4(b) or Section 2.5(c), Seller leases to Purchaser any Real Property that is subject to a Title Defect or a Material Adverse Environmental Condition (as the case may be, a "DEFECT"), then Seller shall lease such Real Property to Purchaser, on a triple net basis, at existing market rents for a term of three (3) years commencing at the Closing pursuant to a lease substantially in the form attached hereto as Exhibit 2.4(c). The parties agree that, if they cannot agree upon the "existing market rent" to be payable for any such Real Property under any such lease, then such "existing market rent" shall be determined by an appraisal to be conducted by an appraiser selected in the manner set forth in Section 2.8 below, with the cost of such appraisal to be shared equally by Purchaser and Seller. The "existing market rent" applicable to any such lease shall be the rent that a willing tenant would pay to lease the Real Property in question on the terms set forth above for use as a bank branch. If any Real Property is leased to Purchaser pursuant to this provision, the Purchase Price shall be reduced by the amount of the Property Price attributable to such Real Property, but if Seller cures or eliminates the Defect related thereto to Purchaser's reasonable satisfaction at any time during the term of such lease, then Purchaser shall promptly thereafter purchase such Real Property according to the applicable provisions hereof and pay Seller the Property Price for such Real Property (without interest thereon and less any lease payments made by Purchaser to Seller with respect to such Real Property) at the time of transfer of title thereto to Purchaser.
Title to Property; Leases The Company has good and sufficient title to its Material properties, 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 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, except for those defects in title and Liens that, individually or in the aggregate, would not have a Material Adverse Effect. All Material leases are valid and subsisting and are in full force and effect in all material respects.
Personal Property Leases Except as set forth in Schedule 3.13.(b), Company has no leases of personal property involving consideration or other expenditure in excess of $5,000 or involving performance over a period of more than three months.
Real Property Leases CLAUSE 2.13 of the Disclosure Schedule lists -------------------- and describes briefly all real property leased or subleased to the Company and lists the term of such lease, any extension and expansion options, and the rent payable thereunder. The Company has delivered to the Buyer true, correct and complete copies of the leases and subleases (as amended to date) listed in CLAUSE 2.13 of the Disclosure Schedule. The Company is not party to, or otherwise obliged with respect to, any lease or sublease for facilities, which are not occupied by the Company. With respect to each lease and sublease listed in CLAUSE 2.13 of the Disclosure Schedule:
(a) the lease or sublease is legal, valid, binding, enforceable and in full force and effect;
(b) there is no reason which would impair the lease or sublease to continue to be legal, valid, binding, enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect prior to the Closing;
(c) the Company is not in breach or default, and no event has occurred which, with notice or lapse of time, would constitute a breach or default or permit termination, modification, or acceleration thereunder;
(d) there are no disputes, oral agreements or forbearance programs in effect as to the lease or sublease;
(e) the Company has not assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in the leasehold or subleasehold;
(f) all facilities leased or subleased thereunder are supplied with utilities and other services necessary for the operation of said facilities in the manner in which such facilities are currently operated and as presently contemplated by the Company; and
(g) the owner of the facility leased or subleased, has stated that, it has good and clear record and marketable title to the parcel of real property, free and clear of any Security Interest, easement, covenant or other restriction, that would interfere in any material respect with the Company's operations thereon, and there have been no actions to believe the contrary.
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.
Property Leased Lessor leases to Lessee all of the Equipment described on each Summary Equipment Schedule. In the event of a conflict, the terms of the applicable Schedule prevail over this Master Lease.
Leasehold Interests Each lease or agreement to which the Company is a party under which it is a lessee of any property, real or personal, is a valid and subsisting agreement without any default of the Company thereunder and, to the best of the Company's knowledge, without any default thereunder of any other party thereto. No event has occurred and is continuing which, with due notice or lapse of time or both, would constitute a default or event of default by the Company under any such lease or agreement or, to the best of the Company's knowledge, by any other party thereto. The Company's possession of such property has not been disturbed and, to the best of the Company's knowledge, no claim has been asserted against the Company adverse to its rights in such leasehold interests.
Leaseholds If the Mortgage Loan is secured by a long-term residential lease, (1) the lessor under the lease holds a fee simple interest in the land; (2) the terms of such lease expressly permit the mortgaging of the leasehold estate, the assignment of the lease without the lessor's consent and the acquisition by the holder of the Mortgage of the rights of the lessee upon foreclosure or assignment in lieu of foreclosure or provide the holder of the Mortgage with substantially similar protections; (3) the terms of such lease do not (a) allow the termination thereof upon the lessee's default without the holder of the Mortgage being entitled to receive written notice of, and opportunity to cure, such default, (b) allow the termination of the lease in the event of damage or destruction as long as the Mortgage is in existence, (c) prohibit the holder of the Mortgage from being insured (or receiving proceeds of insurance) under the hazard insurance policy or policies relating to the Mortgaged Property or (d) permit any increase in rent other than pre-established increases set forth in the lease; (4) the original term of such lease is not less than 15 years; (5) the term of such lease does not terminate earlier than five years after the maturity date of the Mortgage Note; and (6) the Mortgaged Property is located in a jurisdiction in which the use of leasehold estates in transferring ownership in residential properties is a widely accepted practice;
Real Property Interests (a) The Owner has provided, or upon execution of this Agreement shall promptly provide to the Developer, documentation acceptable to the Department indicating any right, title or interest in real property claimed by the Owner with respect to the Owner Utilities in their existing location(s). Such claims are subject to the Department’s approval as part of its review of the Utility Assembly as described in Paragraph 2. Claims approved by the Department as to rights or interests are referred to herein as “Existing Interests”.
(b) If acquisition of any new easement or other interest in real property (“New Interest”) is necessary for the Adjustment of any Owner Utilities, then the Owner shall be responsible for undertaking such acquisition. The Owner shall implement each acquisition hereunder expeditiously so that related Adjustment construction can proceed in accordance with the Developer’s Project schedules. The Developer shall be responsible for the actual and reasonable acquisition costs of any such New Interest (including without limitation the Owner’s reasonable overhead charges and legal costs as well as compensation paid to the landowner), excluding any costs attributable to Betterment as described in Paragraph 16(c), and subject to the provisions of Paragraph 16(e); provided, however, that all acquisition costs shall be subject to the Developer’s prior written approval. Eligible acquisition costs shall be segregated from other costs on the Owner's estimates and invoices. Any such New Interest shall have a written valuation and shall be acquired in accordance with applicable law.
(c) A New Interest shall be substantially equivalent (e.g., in width and type) to the Existing Interest being replaced, unless a New Interest exceeding such standard (i) is required in order to accommodate the Project or by compliance with applicable law, or (ii) is called for by the Developer in the interest of overall Project economy. Any New Interest that does not meet the requirements of the preceding sentence shall be considered a Betterment to the extent that it upgrades the Existing Interest which it replaces, or in its entirety if the related Owner Utility was not installed pursuant to an Existing Interest. Betterment costs shall be solely the Owner’s responsibility.
(d) For each Existing Interest located within the final Project right of way, upon completion of the related Adjustment work and its acceptance by the Owner, the Owner agrees to execute a quitclaim deed or other appropriate documentation relinquishing such Existing Interest to the Department, unless the affected Owner Utility is remaining in its original location or is being reinstalled in a new location within the area subject to such Existing Interest. All quitclaim deeds or other relinquishment documents shall be subject to the Department's approval as part of its review of the Utility Assembly as described in Paragraph 2. For each such Existing Interest relinquished by the Owner, the Developer shall do one of the following to compensate the Owner for such Existing Interest, as appropriate:
(i) If the Owner acquires a New Interest for the affected Owner Utility, the Developer shall reimburse the Owner for its actual and reasonable acquisition costs in accordance with Paragraph 16(b); or
(ii) If the Owner does not acquire a New Interest for the affected Owner Utility, the Developer shall compensate the Owner for the fair market value of such relinquished Existing Interest, as mutually agreed between the Owner and the Developer and supported by a written valuation. The compensation provided to the Owner pursuant to either subparagraph (i) or subparagraph (ii) above shall constitute complete compensation to the Owner for the relinquished Existing Interest, and no further compensation shall be due to the Owner from either the Developer or the Department on account of such Existing Interest.
(e) The Owner shall execute a Utility Joint Use Acknowledgment (TxDOT-U-80A) for each Adjusted Owner Utility where required pursuant to TxDOT policies. All Utility Joint Use Acknowledgments shall be subject to TxDOT approval as part of its review of the Utility Assembly as described in Paragraph 2.
