Owned and Leased Real Property. (a) The Company does not own, has never owned, and has not agreed to acquire any real or immovable property or any other ownership interest in any real or immovable property. (b) Schedule 4.8 sets forth the municipal addresses of the only real property leased by the Company (the “Leased Real Property”). Except as disclosed in Schedule 4.8, the Company is not a party to any accepted promises or offers to lease or sublease, agreements to lease or sublease, leases, subleases, renewals of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy any premises wherever located, other than the lease (the “Lease”) described in Schedule 4.8 relating to the Leased Real Property. For clarity, for the purposes of this section 4.8, collocation services and other data center products or services offered pursuant to the Company’s customer contracts shall not be deemed to constitute a lease or sublease of any sort or any of the aforementioned arrangements. Subject to the foregoing sentence and the terms of the sub-lease with identified in Schedule 4.8, the Company occupies the Leased Real Property and has the exclusive right to occupy and use the Leased Real Property, subject to the rights of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and neither the Company nor, to the Company’s knowledge, any other party thereto, is in breach of any covenants, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments thereto, to the Purchaser. The Company has never leased, occupied (whether as lessee or licensee), managed or otherwise controlled any real property other than the Leased Real Property. (c) Except as disclosed in Schedule 4.8, the Company is not a party, as lessor or sublessor, to any lease, agreement to lease or offer to lease in respect of any immovable or real property or any Leased Real Property. (d) To the Company’s knowledge, all buildings, structures, appurtenances fixtures and other improvements forming part of the Leased Real Property are in good operating conditions and are adequate and suitable for the purposes for which they are currently being used, and the Company has adequate rights of ingress and egress for the operation of the Business in the Ordinary Course. None of such buildings, structures, appurtenances, fixtures or other improvements (or any equipment therein), nor the operation or maintenance thereof, violates, in any material respect, any restrictive covenant or any provision of any applicable Laws, or encroaches, in any material respect, on any property owned by others, except as disclosed in Schedule 4.8. (e) Unless otherwise disclosed in Schedule 4.8, all of the construction work described in Schedule 4.8 has been fully paid for and completed in accordance with applicable Laws and the Lease for the Leased Real Property. (f) Without limiting the generality of the foregoing, subject to the disclosures set out in Schedule 4.8: (i) the Leased Real Property, the current uses thereof and the conduct of the Business comply with all applicable Laws, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Laws; (ii) no alteration, repair, improvement or other work has been ordered, directed or requested in writing by any governmental authority to be done or performed to or in respect of the Leased Real Property or to any of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completed, and none of the Sellers know of any written notification having been given to it of any such outstanding work being ordered, directed or requested, other than those which have been complied with; (iii) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part thereof; (iv) there is nothing owing in respect of the Leased Real Property by the Company to any municipal corporation or to any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the use thereof, other than current accounts in respect of which the payment due date has not yet passed and which are reserved for; (v) no part of the Leased Real Property has been taken or expropriated by any governmental authority, nor has any notice or proceeding in respect thereof been given or commenced; (vi) the Leased Real Property (including all buildings, improvements and fixtures) is fit for its present use, there are no material or structural repairs or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated; (vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation of agricultural land and agricultural activities (Québec); and (viii) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on the property tax bills for such property.
Appears in 2 contracts
Sources: Share Purchase Agreement (Bit Digital, Inc), Share Purchase Agreement (Bit Digital, Inc)
Owned and Leased Real Property. (a) Schedule 3.10(a) of the Disclosure Letter correctly identifies the owner and, when applicable, city and state of all Real Property and interest in Real Property owned in fee by each Partnership Party or any of their respective Subsidiaries (the “Owned Real Property”) and contains, a true and complete list of each commercial lease of any portion of any Real Property for which the annual base rent is in excess of $250,000 and the term is in excess of five (5) years (as amended, restated, replaced, supplemented, or otherwise modified to date, the “Real Property Leases”). The Company Partnership Parties have provided or made available to the Investors true, accurate and complete copies of all currently effective owner’s title insurance policies and surveys for each Owned Real Property in the possession of the Partnership. Schedule 3.10(a) identifies Real Properties (i) that either the Partnership or one of its Controlled Subsidiaries manages the day-to-day operations of, (ii) that a Limited Control Subsidiary manages the day-to-day operations of, and (iii) all other Real Property. With respect to each Owned Real Property:
(i) the identified owner of each parcel of Owned Real Property has fee simple title to such Owned Real Property, free and clear of any Encumbrance, as set forth in the applicable currently effective owner’s title insurance policy delivered or made available to the Investors in accordance with Section 3.10(a), except for Permitted Encumbrances;
(ii) any Encumbrance, covenant, or other restriction recorded against such Owned Real Property does not ownand is not reasonably expected to materially impair the ability to use or develop or construct upon any such Owned Real Property in the operation of the business of the owner thereof as presently conducted or development of or construction upon such Owned Real Property as currently contemplated for the business intended to be conducted thereon; and
(iii) there are no parties (other than the Partnership Parties and the MCRC Parties) in possession of such Owned Real Property, has never ownedother than (1) tenants under any leases disclosed in Schedule 3.10(a) of the Disclosure Letter who are in possession of space to which they are entitled, (2) tenants under leases for which the annual base rent is less than $250,000 and has not agreed to acquire any real or immovable property or any (3) other ownership interest Persons in any real or immovable propertypossession of de minimis space.
(b) Schedule 4.8 sets forth the municipal addresses 3.10(b) of the only real property leased by the Company (the “Leased Real Property”). Except as disclosed in Schedule 4.8, the Company is not Disclosure Letter contains a party to any accepted promises or offers to lease or sublease, agreements to lease or sublease, leases, subleases, renewals complete and accurate rent roll of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy any premises wherever located, other than the lease (the “Lease”) described in Schedule 4.8 relating to the Leased Real Property. For clarity, each for the purposes Real Properties in which there are tenants as of this section 4.8December 31, collocation services and other data center products or services offered pursuant to the Company’s customer contracts shall not be deemed to constitute a lease or sublease of any sort or any of the aforementioned arrangements. Subject to the foregoing sentence and the terms of the sub-lease with identified in Schedule 4.8, the Company occupies the Leased Real Property and has the exclusive right to occupy and use the Leased Real Property, subject to the rights of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and neither the Company nor, to the Company’s knowledge, any other party thereto, is in breach of any covenants, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments thereto, to the Purchaser. The Company has never leased, occupied (whether as lessee or licensee), managed or otherwise controlled any real property other than the Leased Real Property2016.
(c) Except as disclosed contained in Schedule 4.8any of the Organizational Documents of the Subsidiaries, there are no outstanding options, rights of first offer or rights of first refusal to purchase or acquire any of the Company is not a party, as lessor Real Properties or sublessorany portion thereof or interest therein.
(d) There are no pending or, to any lease, agreement to lease or offer to lease in respect the Knowledge of any immovable or real property Partnership Party, threatened condemnation proceedings with respect to all or any Leased portion of the Real Property.
(de) To Schedule 3.10(e) of the Company’s knowledgeDisclosure Letter sets forth a true, correct, and complete list of all buildingsleases, structuressubleases, appurtenances fixtures licenses, or other occupancy agreements pursuant to which any Partnership Party or any of their respective Controlled Subsidiaries, and to the Partnership Parties’ Knowledge, their respective Non-Controlled Subsidiaries and Limited Control Subsidiaries, leases, subleases, licenses, or otherwise occupies (whether as tenant or subtenant) any real property, including all amendments, restatements, replacements, supplements and other improvements forming part modifications thereto (collectively, the “Company Leases”). The Partnership Parties have delivered or made available to the Investors true and complete copies of the Leased Real Property are in good operating conditions Company Leases. Each Company Lease is a valid and are adequate and suitable for binding obligation of the purposes for which they are currently being usedtenant, subtenant, licensee, or occupant thereunder and, to the Knowledge of the Partnership Parties, the landlord, sublandlord, licensor, or other non-occupant party thereunder, and is in full force and effect; neither the Company has adequate rights Partnership Parties nor any of ingress and egress for their Controlled Subsidiaries, nor, to the operation Knowledge of the Business Partnership Parties any of their respective Non-Controlled Subsidiaries or Limited Control Subsidiaries, has received from the landlord, sublandlord, licensor, or other non-occupant party any written notice of a material default by the tenant, subtenant, licensee, or occupant under any Company Lease which remains uncured, and no such party is in material default under any Company Lease, and all rent thereunder has been paid current; neither any Partnership Party nor any of their Controlled Subsidiaries, nor, to the Ordinary CourseKnowledge of the Partnership Parties any of their respective Non-Controlled Subsidiaries or Limited Control Subsidiaries, has given any written notice of a material default by the applicable landlord, sublandlord, licensor, or other non-occupant party with respect to any Company Lease which remains uncured. None of such buildings, structures, appurtenances, fixtures or other improvements (the Partnership Parties or any equipment therein)of their respective Controlled Subsidiaries, nor or, to the operation Partnership Parties’ Knowledge, their respective Non-Controlled Subsidiaries or maintenance thereofLimited Control Subsidiaries has assigned, violatestransferred, mortgaged, deeded in trust, or encumbered any interest in any material respect, any restrictive covenant or any provision of any applicable Laws, or encroaches, in any material respect, on any property owned by othersCompany Lease, except for any Permitted Encumbrances or as disclosed in set forth on Schedule 4.8.
(e3.10(e) Unless otherwise disclosed in Schedule 4.8, all of the construction work described in Schedule 4.8 has been fully paid for and completed in accordance with applicable Laws and the Lease for the Leased Real PropertyDisclosure Letter.
(f) Without limiting With regard to the generality Real Property Leases, except as set forth in Schedule 3.10(f) of the foregoing, subject to the disclosures set out in Schedule 4.8:
Disclosure Letter: (i) the Leased Real PropertyProperty Leases are valid and binding obligations of the landlord thereunder and, to the Knowledge of the Partnership Parties, the current uses thereof Tenants thereunder, and the conduct of the Business comply with all applicable Laws, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire are in full force and public health and safety and Environmental Laws;
effect; (ii) neither the Partnership Party nor any of their Controlled Subsidiaries, nor, to the Knowledge of the Partnership Parties any of their respective Non-Controlled Subsidiaries or Limited Control Subsidiaries, has received any written notice of a material default by the applicable landlord under any Real Property Lease which remains uncured; (iii) neither any Partnership Party nor any of their Controlled Subsidiaries, nor, to the Knowledge of the Partnership Parties any of their respective Non-Controlled Subsidiaries or Limited Control Subsidiaries, has given any written notice of a material default by the applicable Tenant under any Real Property Lease which remains uncured; and (iv) except as expressly set forth in the Real Property Leases, no alterationTenant is entitled, repairnow or in the future, improvement to any concession, rebate, offset, allowance or other work free rent for any period nor to the Knowledge of the Partnership Parties has any such material claim been ordered, directed or requested asserted in writing by any governmental authority to be done or performed to or in respect of the Leased Real Property or to any of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completed, and none of the Sellers know of any written notification having been given to it of any such outstanding work being ordered, directed or requested, other than those which have been complied with;
(iii) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part thereof;
(iv) there is nothing owing in respect of the Leased Real Property by the Company to any municipal corporation or to any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the use thereof, other than current accounts in respect of which the payment due date has not yet passed and which are reserved for;
(v) no part of the Leased Real Property has been taken or expropriated by any governmental authority, nor has any notice or proceeding in respect thereof been given or commenced;
(vi) the Leased Real Property (including all buildings, improvements and fixtures) is fit for its present use, there are no material or structural repairs or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated;
(vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation of agricultural land and agricultural activities (Québec); and
(viii) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on the property tax bills for such propertyTenant.
Appears in 1 contract
Sources: Preferred Equity Investment Agreement (Mack Cali Realty L P)
Owned and Leased Real Property. (a) The Company Group does not own, has never owned, and has not agreed to acquire own any real or immovable property or or, except for the leases and subleases set forth in Section 2.11 of the Disclosure Schedule, any other ownership interest in any real or immovable property.
(b) Schedule 4.8 sets forth the municipal addresses Section 2.11 of the only Disclosure Schedule lists all real property leased by or subleased to any Group Member as of the Company date hereof (the “"Leased Real Property”"). Except as disclosed in Schedule 4.8, the Company is not a party to any accepted promises or offers to lease or sublease, agreements to lease or sublease, leases, subleases, renewals of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy any premises wherever located, other than the lease (the “Lease”) described in Schedule 4.8 relating The Seller has made available to the Buyer true, correct and complete copies of the leases and subleases (as amended to date) and other agreements for occupancy, including all amendments, extensions and other modifications thereto as of the date hereof ("Real Property Leases") with respect to each Leased Real Property. For clarityWith respect to each Real Property Lease, for except as would not reasonably be expected to have a Material Adverse Effect on any Group Member:
(i) the purposes Real Property Lease is a legal, valid and binding obligation of this section 4.8the Group Member which is a party to such Real Property Lease, collocation services and other data center products or services offered pursuant to the Company’s customer contracts shall not be deemed to constitute a lease or sublease of any sort or any of the aforementioned arrangements. Subject to the foregoing sentence Seller's knowledge, each other party thereto and the terms of the sub-lease with identified in Schedule 4.8, the Company occupies the Leased Real Property and has the exclusive right to occupy and use the Leased Real Property, subject to the rights of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and enforceable in accordance with its terms;
(ii) neither the Company a Group Member nor, to the Company’s Seller's knowledge, any other party thereto, to the Real Property Lease is in breach of any covenantsor default, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments theretoand, to the Purchaser. The Company Seller's knowledge, no event has never leasedoccurred which, occupied with notice or lapse of time, would constitute a breach or default or permit termination, modification or acceleration thereunder;
(whether iii) to the Seller's knowledge, there are no disputes, oral agreements or forbearance programs in effect as lessee to the Real Property Lease; and
(iv) no Group Member has assigned, transferred, conveyed, mortgaged, deeded in trust or licensee), managed encumbered any interest in the leasehold or otherwise controlled any real property other than the Leased Real Propertysubleasehold.
(c) Except as disclosed in Schedule 4.8, the Company is not a party, as lessor or sublessor, to any lease, agreement to lease or offer to lease in respect of any immovable or real property or any Leased Real Property.
(d) To the Company’s knowledge, all buildings, structures, appurtenances fixtures and other improvements forming part of the Leased Real Property are in good operating conditions and are adequate and suitable for the purposes for which they are currently being used, and the Company has adequate rights of ingress and egress for the operation of the Business in the Ordinary Course. None of such buildings, structures, appurtenances, fixtures or other improvements (or any equipment therein), nor the operation or maintenance thereof, violates, in any material respect, any restrictive covenant or any provision of any applicable Laws, or encroaches, in any material respect, on any property owned by others, except as disclosed in Schedule 4.8.
(e) Unless otherwise disclosed in Schedule 4.8, all of the construction work described in Schedule 4.8 has been fully paid for and completed in accordance with applicable Laws and the Lease for the Leased Real Property.
(f) Without limiting the generality of the foregoing, subject to the disclosures set out in Schedule 4.8:
(i) the Leased Real Property, the current uses thereof and the conduct of the Business comply with all applicable Laws, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Laws;
(ii) no alteration, repair, improvement or other work has been ordered, directed or requested in writing by any governmental authority to be done or performed to or in respect of the Leased Real Property or to any of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completed, and none of the Sellers know of any written notification having been given to it of any such outstanding work being ordered, directed or requested, other than those which have been complied with;
(iii) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part thereof;
(iv) there is nothing owing in respect of the Leased Real Property by the Company to any municipal corporation or to any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the use thereof, other than current accounts in respect of which the payment due date has not yet passed and which are reserved for;
(v) no part of the Leased Real Property has been taken or expropriated by any governmental authority, nor has any notice or proceeding in respect thereof been given or commenced;
(vi) the Leased Real Property (including all buildings, improvements and fixtures) is fit for its present use, there are no material or structural repairs or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the The Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated;
(vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation of agricultural land and agricultural activities (Québec); and
(viii) the Leased Real Property is fully serviced by public utilities necessary sufficient for the occupation continued conduct of the business of each Group Member in substantially the same manner as such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on the property tax bills for such propertybusiness is currently conducted.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Aztec Technology Partners Inc /De/)
Owned and Leased Real Property. (a) The Section 3.11(a) of the Disclosure Letter contains a list of each lease or license pursuant to which the Company does not own, has never owned, and has not agreed to acquire or any of its Subsidiaries leases or licenses the use or occupancy of any real or immovable property or any other ownership interest in any real or immovable property.
(b) Schedule 4.8 sets forth the municipal addresses as of the only date of this Agreement (each, a “Lease” and, such real property leased by the Company (property, the “Leased Real Property”). Except as disclosed in Schedule 4.8, Each Lease is valid and binding on the Company is not a and any of its Subsidiaries party to any accepted promises or offers to lease or subleasethereto and, agreements to lease or sublease, leases, subleases, renewals of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy any premises wherever located, other than the lease (the “Lease”) described in Schedule 4.8 relating to the Leased Real Property. For clarity, for the purposes of this section 4.8, collocation services and other data center products or services offered pursuant to the Company’s customer contracts shall not be deemed to constitute a lease or sublease of any sort or any of the aforementioned arrangements. Subject to the foregoing sentence Knowledge, each other party thereto, and the terms of the sub-lease with identified in Schedule 4.8, the Company occupies the Leased Real Property and has the exclusive right to occupy and use the Leased Real Property, subject to the rights of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and neither . There is no material breach or default under any Lease by the Company noror any of its Subsidiaries or, to the Company’s knowledgeKnowledge, any other party thereto, is in . No event has occurred that with or without the lapse of time or the giving of notice or both would constitute a material breach or default under any Lease by the Company or any of any covenants, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments theretoits Subsidiaries or, to the PurchaserCompany’s Knowledge, any other party thereto. The Company or one of its Subsidiaries that is either the tenant or licensee named under a Lease has never leased, occupied (whether as lessee or licensee), managed or otherwise controlled any a good and valid leasehold interest in each parcel of real property that is subject to the Lease and is in possession of the properties purported to be leased or licensed thereunder. Neither the Company, any of its Subsidiaries nor any of their respective authorized agents or employees has received written notice of any claimed abatements, offsets, defenses or other bases for relief or adjustment with respect to any Lease.
(b) Section 3.11(b) of the Disclosure Letter contains a list of all real property owned by the Company or any of its Subsidiaries (the “Owned Real Property”). The Company or one of its Subsidiaries has good and marketable fee simple title to the Owned Real Property and to all of the buildings, structures and other improvements thereon free and clear of all Liens other than Permitted Liens. There are no outstanding agreements, options, rights of first offer or rights of first refusal on the Leased part of any Person to purchase any Owned Real Property.
(c) Except as disclosed in Schedule 4.8With respect to each Leased Real Property and Owned Real Property, the Company is not a party, as lessor or sublessor(i) there are no pending or, to any lease, agreement to lease or offer to lease in respect of any immovable or real property or any Leased Real Property.
(d) To the Company’s knowledgeKnowledge, contemplated, rezoning or special designation proceedings affecting any of the Leased Real Property or the Owned Real Property, (ii) there are no pending or, to the Company’s Knowledge, threatened, condemnation proceedings related to any of the Leased Real Property or the Owned Real Property, and (iii) all of the buildings, structures, appurtenances fixtures and other improvements forming part situated on any of the Leased Real Property or the Owned Real Property have been maintained in accordance with the Company’s usual business practices, and are in good operating conditions condition and in a state of good maintenance and repair, are adequate and suitable for the purposes for which they are currently presently being usedused and, and with respect to each, the Company has and its Subsidiaries have adequate rights of ingress and egress for the operation of the Business their respective businesses in the Ordinary Course. None ordinary course of business, and none of such buildings, structures, appurtenances, fixtures or other improvements (or any equipment therein)improvements, nor the operation or maintenance thereof, violates, in any material respect, violates any restrictive covenant or any provision of any covenant, applicable Lawsbuilding, or encroaches, in any material respect, on any property owned by others, except as disclosed in Schedule 4.8.
(e) Unless otherwise disclosed in Schedule 4.8, all of the construction work described in Schedule 4.8 has been fully paid for and completed in accordance with applicable Laws and the Lease for the Leased Real Property.
(f) Without limiting the generality of the foregoing, subject to the disclosures set out in Schedule 4.8:
(i) the Leased Real Property, the current uses thereof and the conduct of the Business comply with all applicable Laws, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Laws;
(ii) no alteration, repair, improvement zoning or other work has been ordered, directed or requested in writing by any governmental authority to be done or performed to or in respect of the Leased Real Property or to any of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completed, and none of the Sellers know of any written notification having been given to it of any such outstanding work being ordered, directed or requested, other than those which have been complied with;
(iii) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part thereof;
(iv) there is nothing owing in respect of the Leased Real Property by the Company to any municipal corporation or to any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the land-use thereof, other than current accounts in respect of which the payment due date has not yet passed and which are reserved for;
(v) no part of the Leased Real Property has been taken or expropriated by any governmental authority, nor has any notice or proceeding in respect thereof been given or commenced;
(vi) the Leased Real Property (including all buildings, improvements and fixtures) is fit for its present use, there are no material or structural repairs or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated;
(vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation of agricultural land and agricultural activities (Québec); and
(viii) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on the property tax bills for such propertyLaws.
Appears in 1 contract
Sources: Merger Agreement (Roadrunner Transportation Systems, Inc.)
Owned and Leased Real Property. (a1) The Company does not own, has never owned, and has not agreed to acquire any real or immovable property or any other ownership interest in any real or immovable property.
(bSection 4.11(a) Schedule 4.8 sets forth the municipal addresses of the only Disclosure Letter contains (i) a correct and complete list (including address, record owner, legal description, duration of ownership and description of uses) of all interests in real property leased owned by the Company or any of its Subsidiaries (all such real property, together with all buildings, structures and other improvements and fixtures located on or under such real property and all easements, rights and other appurtenances to such real property are collectively referred to herein as the “Owned Real Property”) and (ii) a correct and complete description of all leases, licenses, permits, subleases and occupancy agreements or arrangements, together with any amendments thereto (each a “Real Property Lease” and collectively, the “Real Property Leases”), with respect to real property which the Company or any of its Subsidiaries are a party to, bound by or enjoy the benefits of (the “Leased Real Property”). Except as disclosed in Schedule 4.8” and, together with the Company is not a party to any accepted promises or offers to lease or sublease, agreements to lease or sublease, leases, subleases, renewals of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy any premises wherever located, other than the lease (the “Lease”) described in Schedule 4.8 relating to the Leased Real Property. For clarity, for the purposes of this section 4.8, collocation services and other data center products or services offered pursuant to the Company’s customer contracts shall not be deemed to constitute a lease or sublease of any sort or any of the aforementioned arrangements. Subject to the foregoing sentence and the terms of the sub-lease with identified in Schedule 4.8, the Company occupies the Leased Real Property and has the exclusive right to occupy and use the Leased Owned Real Property, subject to the rights “Real Property”), including the address and a description of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and neither uses by the Company nor, to the Company’s knowledge, any other party thereto, is in breach and its Subsidiaries of any covenants, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments thereto, to the Purchaser. The Company has never leased, occupied (whether as lessee or licensee), managed or otherwise controlled any real property other than the Leased Real Property.
(c2) Except as disclosed set forth in Schedule 4.8Section 4.11(a) of the Disclosure Letter, there are no leases, subleases, licenses, occupancy agreements, options to purchase, rights of first refusal, rights of first offer, conditional sales or similar rights with respect to any of the Company is not a party, as lessor or sublessorOwned Real Property and, to any lease, agreement to lease or offer to lease in respect of any immovable or real property or any Leased Real Property.
(d) To the Company’s knowledgeKnowledge, all buildings, structures, appurtenances fixtures and other improvements forming part any of the Leased Real Property are in good operating conditions and are adequate and suitable for (other than the purposes for which they are currently being usedReal Property Leases), and there are no parties in possession of the Real Property other than the Company has adequate rights of ingress or its Subsidiaries.
(3) The Company and egress for the operation its Subsidiaries own good, valid and marketable title to each parcel of the Business Owned Real Property in which it has an interest, in each case free and clear of any Liens other than Permitted Liens. Neither the Ordinary Course. None Company nor any of such buildings, structures, appurtenances, fixtures or other improvements (or its Subsidiaries has received any equipment therein), nor written notice since the operation or maintenance thereof, violatesAcquisition Date that it has violated, in any material respect, any restrictive covenant Law applicable to the ownership or operation of the Owned Real Property or any provision covenant, condition, easement or restriction of record affecting any of the Owned Real Property, except for those violations that have been cured in all material respects.
(4) Except as set forth in Section 4.11(a) of the Disclosure Letter, the Real Property constitutes all of the land, buildings, structures, improvements, fixtures and other interests and rights in real property that are used or occupied by the Company and its Subsidiaries in connection with the business of the Company and its Subsidiaries. All of the Real Property has access to public roads and to all utilities necessary for the operation of the business of the Company and its Subsidiaries as now conducted. Since the Acquisition Date, neither the Company nor any of its Subsidiaries have received any written notice of any applicable Lawsmaterial discontinuation of presently available or otherwise necessary access, sewer, water, electric, gas, telephone or other utilities or services for the Real Property and, to the Company’s Knowledge, there do not exist any adverse claims to such access, sewer, water, electric, gas, telephone or other utilities or services that would materially adversely affect the use currently being made of such access, sewer, water, electric, gas, telephone or other utilities or services. All public utilities required for the operation of the Real Property by the Company and its Subsidiaries and necessary for the conduct of the business of the Company and its Subsidiaries are installed and operating in all material respects, and all installation and connection charges, to the Company’s Knowledge are paid in full.
(5) There is no pending or, to the Company’s Knowledge, threatened Legal Action regarding condemnation or other eminent domain matter affecting any of the Owned Real Property or any sale or other disposition of any of the Owned Real Property in lieu of condemnation.
(6) Each parcel of the Owned Real Property is assessed separately from all other adjacent property for purposes of real estate taxes. No action seeking a reduction in real estate taxes imposed upon the Owned Real Property or the assessed valuation thereof (or any portion thereof) (i) has been settled since the Acquisition Date or (ii) is currently pending.
(7) True, correct and complete copies of all material plans and specifications relating to the Real Property in the possession or control of the Seller have been made available to Buyer.
(8) Neither the Company nor any of its Subsidiaries has any existing or executory oral or written agreement with any real estate broker, agent or finder with respect to the Real Property.
(9) Except for Permitted Liens, to the Company’s Knowledge, no Person (other than the Company or any of its Subsidiaries) has any interest in, or encroachesrights to, the mineral, oil, gas, and other natural resources arising from the Owned Real Property.
(10) All of the Owned Real Property (i) since the Acquisition Date, has been maintained in accordance with historical practices of the Company and its Subsidiaries since the Acquisition Date, with, to the Company’s Knowledge, no material items of deferred maintenance or capital expenditures, and (ii) is adequate and, to the Company’s Knowledge, suitable for the purposes for which it is presently being used. To the Company’s Knowledge, there are no material structural defects with respect to the buildings, structures and other improvements situated on any Owned Real Property. None of the improvements located on the Owned Real Property or uses being made of the Real Property by the Company or any of its Subsidiaries requires any special dispensation, variance or special permit under any Law that has not been properly obtained in any material respect, on any property owned by others, except as disclosed set forth in Schedule 4.8.
(e) Unless otherwise disclosed in Schedule 4.8, all of the construction work described in Schedule 4.8 has been fully paid for and completed in accordance with applicable Laws and the Lease for the Leased Real Property.
(f) Without limiting the generality of the foregoing, subject to the disclosures set out in Schedule 4.8:
(i) the Leased Real Property, the current uses thereof and the conduct of the Business comply with all applicable Laws, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Laws;
(ii) no alteration, repair, improvement or other work has been ordered, directed or requested in writing by any governmental authority to be done or performed to or in respect of the Leased Real Property or to any of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completed, and none of the Sellers know of any written notification having been given to it of any such outstanding work being ordered, directed or requested, other than those which have been complied with;
(iii) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part thereof;
(iv) there is nothing owing in respect of the Leased Real Property by the Company to any municipal corporation or to any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the use thereof, other than current accounts in respect of which the payment due date has not yet passed and which are reserved for;
(v) no part of the Leased Real Property has been taken or expropriated by any governmental authority, nor has any notice or proceeding in respect thereof been given or commenced;
(vi) the Leased Real Property (including all buildings, improvements and fixtures) is fit for its present use, there are no material or structural repairs or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated;
(vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation of agricultural land and agricultural activities (QuébecSection 4.11(j); and
(viii) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on the property tax bills for such property.
Appears in 1 contract
Sources: Stock Purchase Agreement (Star Equity Holdings, Inc.)
Owned and Leased Real Property. The Assets do not include any real property. The Disclosure Schedule lists all real property leased or subleased to each Asset Seller which is utilized in the Technical Services Business. The Seller has made available to the Buyer correct and complete copies of the leases and subleases (as amended to date) listed therein (the "Leases"). With respect to each such Lease, except as would not reasonably be expected to have a TSB Material Adverse Effect or materially impair the Technical Services Business' ability to occupy or use the property subject to such Lease in a manner consistent with current usage:
(a) The Company does not ownthe Lease is a legal, has never ownedvalid, binding and has not agreed enforceable obligation of the Asset Seller which is a party to acquire any real such Lease and, to the Seller's knowledge, of each other party to such Lease, except as the foregoing may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or immovable property other similar laws relating to or any affecting the rights of creditors generally and by equitable principles, including without limitation those limiting the availability of specific performance, injunctive relief and other ownership interest in any real or immovable property.equitable remedies and those providing for equitable defenses;
(b) Schedule 4.8 sets forth the municipal addresses of the only real property leased by the Company (the “Leased Real Property”). Except as disclosed in Schedule 4.8, the Company is not a party to any accepted promises or offers to lease or sublease, agreements to lease or sublease, leases, subleases, renewals of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy any premises wherever located, other than the lease (the “Lease”) described in Schedule 4.8 relating to the Leased Real Property. For clarity, for the purposes of this section 4.8, collocation services and other data center products or services offered pursuant to the Company’s customer contracts shall not be deemed to constitute a lease or sublease of any sort or any of the aforementioned arrangements. Subject to the foregoing sentence and the terms of the sub-lease with identified in Schedule 4.8, the Company occupies the Leased Real Property and has the exclusive right to occupy and use the Leased Real Property, subject to the rights of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and neither the Company an Asset Seller nor, to the Company’s Seller's knowledge, any other party thereto, to the Lease is in breach of any covenantsor default, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments theretoand, to the Purchaser. The Company Seller's knowledge, no event has never leasedoccurred which, occupied (whether as lessee with notice or licensee)lapse of time, managed would constitute a breach or otherwise controlled any real property other than the Leased Real Property.default or permit termination, modification or acceleration thereunder;
(c) Except to the Seller's knowledge, there are no disputes, oral agreements or forbearance programs in effect as disclosed in Schedule 4.8, to the Company is not a party, as lessor or sublessor, to any lease, agreement to lease or offer to lease in respect of any immovable or real property or any Leased Real Property.Lease;
(d) To no Asset Seller has assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in a leasehold or subleasehold subject to the Company’s knowledge, all buildings, structures, appurtenances fixtures and other improvements forming part of the Leased Real Property are in good operating conditions and are adequate and suitable for the purposes for which they are currently being used, and the Company has adequate rights of ingress and egress for the operation of the Business in the Ordinary Course. None of such buildings, structures, appurtenances, fixtures or other improvements (or any equipment therein), nor the operation or maintenance thereof, violates, in any material respect, any restrictive covenant or any provision of any applicable Laws, or encroaches, in any material respect, on any property owned by others, except as disclosed in Schedule 4.8.Lease;
(e) Unless otherwise disclosed in Schedule 4.8to the Seller's knowledge, all of there are no pending or overtly threatened condemnation proceedings, lawsuits or administrative actions with respect to the construction work described in Schedule 4.8 has been fully paid for and completed in accordance with applicable Laws and property subject to the Lease for the Leased Real Property.Lease; and
(f) Without limiting the generality applicable Asset Seller has quiet enjoyment of the foregoing, Facility which is the subject to the disclosures set out in Schedule 4.8:
(i) the Leased Real Property, the current uses thereof and the conduct of the Business comply with all applicable Laws, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Laws;
(ii) no alteration, repair, improvement or other work has been ordered, directed or requested in writing by any governmental authority to be done or performed to or in respect of the Leased Real Property or to any of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completed, and none of the Sellers know of any written notification having been given to it of any such outstanding work being ordered, directed or requested, other than those which have been complied with;
(iii) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part thereof;
(iv) there is nothing owing in respect of the Leased Real Property by the Company to any municipal corporation or to any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the use thereof, other than current accounts in respect of which the payment due date has not yet passed and which are reserved for;
(v) no part of the Leased Real Property has been taken or expropriated by any governmental authority, nor has any notice or proceeding in respect thereof been given or commenced;
(vi) the Leased Real Property (including all buildings, improvements and fixtures) is fit for its present use, there are no material or structural repairs or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated;
(vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation of agricultural land and agricultural activities (Québec); and
(viii) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on the property tax bills for such propertyLease.
Appears in 1 contract
Owned and Leased Real Property. (a) The Neither the Company does not ownnor any of its Subsidiaries owns, or has never ever owned, and has not agreed to acquire any real or immovable property or any other ownership interest in any real or immovable property.
(b) Section 3.10(b) of the Company Disclosure Schedule 4.8 sets forth the municipal addresses a complete and accurate list as of the only real property leased by date of this Agreement of all Leases (including the date and name of the parties to each Lease document) and the location of the premises subject thereto. Neither the Company (the “Leased Real Property”). Except as disclosed in Schedule 4.8, the Company is not a party to any accepted promises or offers to lease or sublease, agreements to lease or sublease, leases, subleases, renewals of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy any premises wherever located, other than the lease (the “Lease”) described in Schedule 4.8 relating to the Leased Real Property. For clarity, for the purposes of this section 4.8, collocation services and other data center products or services offered pursuant to the Company’s customer contracts shall not be deemed to constitute a lease or sublease of any sort or nor any of the aforementioned arrangements. Subject to the foregoing sentence and the terms of the sub-lease with identified in Schedule 4.8, the Company occupies the Leased Real Property and has the exclusive right to occupy and use the Leased Real Property, subject to the rights of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and neither the Company its Subsidiaries nor, to the Company’s knowledgeKnowledge, any other party thereto, to any Lease is in breach default under any of any covenantsthe Leases, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments thereto, and to the PurchaserCompany’s Knowledge no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute a breach or default, or permit the termination, modification or acceleration of rent under any of the Leases, except where the existence of such default is not and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as whole. The Neither the Company nor any of its Subsidiaries leases, subleases, licenses or has never leased, occupied (whether as lessee otherwise granted any material right to use or licensee), managed or otherwise controlled occupy any real property to any Person other than the Company and its Subsidiaries. Except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as whole, (i) the Company or a Subsidiary of the Company has valid leasehold interests in all of its Leased Real Property.
; and (cii) Except as disclosed in Schedule 4.8, the Company is not a party, as lessor or sublessor, to any lease, agreement to lease or offer to lease in respect of any immovable or real property or any Leased Real Property.
(d) To the Company’s knowledge, all buildings, structures, appurtenances fixtures or any of its Subsidiary’s possession and other improvements forming part quiet enjoyment of the Leased Real Property are in good operating conditions and are adequate and suitable for under the purposes for which they are currently being used, and the Company has adequate rights of ingress and egress for the operation of the Business in the Ordinary Course. None of such buildings, structures, appurtenances, fixtures or other improvements (or any equipment therein), nor the operation or maintenance thereof, violates, in any material respect, any restrictive covenant or any provision of any applicable Laws, or encroaches, in any material respect, on any property owned by others, except as disclosed in Schedule 4.8.
(e) Unless otherwise disclosed in Schedule 4.8, all of the construction work described in Schedule 4.8 has been fully paid for and completed in accordance with applicable Laws and the Lease for the Leased Real Property.
(f) Without limiting the generality of the foregoing, subject to the disclosures set out in Schedule 4.8:
(i) the Leased Real Property, the current uses thereof and the conduct of the Business comply with all applicable Laws, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Laws;
(ii) no alteration, repair, improvement or other work has been ordered, directed or requested in writing by any governmental authority to be done or performed to or in respect of the Leased Real Property or to any of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which Leases has not been completeddisturbed, and none of to the Sellers know of any written notification having been given Company’s Knowledge there are no disputes with respect to it of any such outstanding work being ordered, directed or requested, other than those which have been complied with;
(iii) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid Leases. The Company has made available to the Buyer complete and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part thereof;
(iv) there is nothing owing in respect accurate copies of the Leased Real Property by the Company to any municipal corporation or to any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the use thereof, other than current accounts in respect of which the payment due date has not yet passed and which are reserved for;
(v) no part of the Leased Real Property has been taken or expropriated by any governmental authority, nor has any notice or proceeding in respect thereof been given or commenced;
(vi) the Leased Real Property all Leases (including all buildingsamendments, improvements extensions, renewals, guaranties and fixtures) is fit for other agreements with respect thereto). Neither of the Company nor any of its present use, there are no material Subsidiaries has collaterally assigned or structural repairs granted any other security interest in any Lease or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated;
(vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation of agricultural land and agricultural activities (Québec); and
(viii) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on the property tax bills for such propertyinterest therein.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Victoria's Secret & Co.)
Owned and Leased Real Property. (a) The Section 3.11(a) of the Disclosure Letter contains a list of each lease, sublease or license pursuant to which the Company does not own, has never owned, and has not agreed to acquire or any of its Subsidiaries leases or licenses the use or occupancy of any real or immovable property or any other ownership interest in any real or immovable property.
(b) Schedule 4.8 sets forth the municipal addresses as of the only date of this Agreement (each, a “Lease” and, such real property leased by the Company (property, the “Leased Real Property”). Except as disclosed in Schedule 4.8, Each Lease is valid and binding on the Company and any of its Subsidiaries party thereto and, to the Company’s Knowledge, each other party thereto, and is not in full force and effect. There is no material breach or default under any Lease by the Company or any of its Subsidiaries or, to the Company’s Knowledge, any other party thereto. No event has occurred that with or without the lapse of time or the giving of notice or both would constitute a material breach or default under any Lease by the Company or any of its Subsidiaries or, to the Company’s Knowledge, any other party to any accepted promises thereto. The Company or offers to lease one of its Subsidiaries that is either the tenant or sublease, agreements to lease or sublease, leases, subleases, renewals of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy any premises wherever located, other than the lease (the “Lease”) described licensee named under a Lease has a good and valid leasehold interest in Schedule 4.8 relating and to the Leased Real Property. For clarity, for the purposes of this section 4.8and, collocation services and other data center products or services offered pursuant except to the Company’s customer contracts shall not be deemed to constitute a lease or sublease extent of the portion of any sort or any of the aforementioned arrangements. Subject to the foregoing sentence and the terms of the sub-lease with identified in Schedule 4.8, the Company occupies the Leased Real Property and has the exclusive right to occupy and use under a sublease, is in possession of the Leased Real Property. Neither the Company, subject any of its Subsidiaries nor any of their respective authorized agents or employees has received written notice of any claimed abatements, offsets, defenses or other bases for relief or adjustment with respect to the rights any Lease.
(b) Section 3.11(b) of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and neither Disclosure Letter contains a list of all real property owned by the Company nor, to or any of its Subsidiaries (the Company’s knowledge, any other party thereto, is in breach of any covenants, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments thereto, to the Purchaser“Owned Real Property”). The Company or the Subsidiary shown in Section 3.11(b) of the Disclosure Letter as the record owner of such parcel of Owned Real Property has never leased, occupied (whether as lessee or licensee), managed or otherwise controlled any real property good and marketable fee simple title to the Owned Real Property free and clear of all Liens other than Permitted Liens. There are no outstanding agreements, options, rights of first offer or rights of first refusal on the Leased part of any Person to purchase or lease any Owned Real Property.
(c) Except as disclosed in Schedule 4.8With respect to each Leased Real Property and Owned Real Property, the Company is not a party, as lessor or sublessor(i) there are no pending or, to any lease, agreement to lease or offer to lease in respect of any immovable or real property or any Leased Real Property.
(d) To the Company’s knowledgeKnowledge, contemplated, rezoning or special designation proceedings affecting any of the Leased Real Property or the Owned Real Property, (ii) there are no pending or, to the Company’s Knowledge, threatened, condemnation proceedings related to any of the Leased Real Property or the Owned Real Property, (iii) all of the buildings, structures, appurtenances fixtures and other improvements forming part situated on any of the Leased Real Property or the Owned Real Property have been maintained in accordance with the Company’s usual business practices, and are in good operating conditions condition and in a state of good maintenance and repair, are adequate and suitable for the purposes for which they are currently presently being used, used and the Company has adequate rights of ingress and egress for the operation of the Business in the Ordinary Course. None none of such buildings, structures, appurtenances, fixtures or other improvements (or any equipment therein)improvements, nor the operation or maintenance thereof, violates, in any material respect, violates any restrictive covenant covenant, applicable building, zoning or any provision of any other applicable land use Laws, or encroaches, in any material respect, on any property owned by others, except as disclosed in Schedule 4.8.
and (eiv) Unless otherwise disclosed in Schedule 4.8, all each parcel of the construction work described in Schedule 4.8 has been fully paid for Owned Real Property and completed in accordance with applicable Laws and the Lease for the Leased Real Property.
(f) Without limiting the generality of the foregoing, subject to the disclosures set out in Schedule 4.8:
(i) the Leased Real Property, the current uses thereof and the conduct of the Business comply with all applicable Laws, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Laws;
(ii) no alteration, repair, improvement or other work has been ordered, directed or requested in writing by any governmental authority to be done or performed to or in respect of the Leased Real Property or to any has adequate rights for ingress and egress for operation of their respective businesses in the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completedordinary course of business, and none for service of the Sellers know of any written notification having been given to it of any such outstanding work being orderedproperty by sewer, directed or requested, other than those which have been complied with;
(iii) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part thereof;
(iv) there is nothing owing in respect of the Leased Real Property by the Company to any municipal corporation or to any other corporation or commission owning or operating a public utility for water, gas, electrical power or energyelectric, steam or hot water, or for the use thereof, telephone and other than current accounts utilities in respect of which the payment due date has not yet passed and which are reserved for;
(v) no part of the Leased Real Property has been taken or expropriated by any governmental authority, nor has any notice or proceeding in respect thereof been given or commenced;
(vi) the Leased Real Property (including all buildings, improvements and fixtures) is fit for its present use, there are no material or structural repairs or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that sufficient capacities as are necessary for the purposes operation of operating the Data Center their respective businesses in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated;
(vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation ordinary course of agricultural land and agricultural activities (Québec); and
(viii) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on the property tax bills for such propertybusiness.
Appears in 1 contract
Owned and Leased Real Property. (a) The No member of the Company does not own, has never owned, and has not agreed Group owns any real property or is under Contract to acquire any real or immovable property or any other ownership interest in any real or immovable property.
(b) Section 3.11(b) of the Disclosure Schedule 4.8 sets forth a true and correct list of all written or oral leases, subleases, sub-subleases, licenses, concessions, occupancy agreements and any other agreements or arrangements, including any amendments, extensions, renewals, guarantees, terminations and modifications with respect thereto, for the municipal addresses use of the only real property leased by to which the Company Group is a party or by which such real property may be bound (collectively, the “Leases,” and the real property (together with the buildings, structures, fixtures and improvements thereon) subject to any such Lease, the “Leased Real Property”). Except as disclosed True, correct and complete copies of the Leases have been delivered or made available to Purchaser. The Company Group has good and valid title to a leasehold estate in Schedule 4.8and has possession of each Leased Real Property free and clear of all Encumbrances (except for Permitted Encumbrances). Each Lease is a legal, valid and binding agreement, except to the extent enforcement may be affected by Enforceability Exceptions. No member of the Company is not a party to any accepted promises or offers to lease or subleaseGroup or, agreements to lease or sublease, leases, subleases, renewals of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy any premises wherever located, other than the lease (the “Lease”) described in Schedule 4.8 relating to the Leased Real Property. For clarity, for the purposes of this section 4.8, collocation services and other data center products or services offered pursuant to the Company’s customer contracts shall not be deemed to constitute a lease Knowledge, any Person other than the Company Group, is in breach of, or sublease default under, in any material respect, any provisions of any sort Lease nor has any event occurred and no circumstances exist which, whether with or without notice or the passage of time, or both, would give rise to such a default or breach, result in a loss of any rights or result in the creation of the aforementioned arrangements. Subject to the foregoing sentence any Encumbrance (except for Permitted Encumbrances) under such Lease.
(c) The Company Group’s possession and the terms quiet enjoyment of the sub-lease with identified in Schedule 4.8, the Company occupies the Leased Real Property and has the exclusive right to occupy and use the Leased Real Property, subject as applicable, has not been disturbed and no party to any Lease has provided written notice to the Company Group of any dispute with respect thereto. There are no leases, subleases, sub-subleases, licenses, occupancy agreements, options, rights of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and neither or other agreements or arrangements to which the Company norGroup is a party granting to any Person the right to use, to the Company’s knowledge, any other party thereto, is in breach of any covenants, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments thereto, to the Purchaser. The Company has never leased, occupied (whether as lessee or licensee), managed occupy or otherwise controlled any obtain a real property other than the Leased Real Property.
(c) Except as disclosed interest in Schedule 4.8, the Company is not a party, as lessor all or sublessor, to any lease, agreement to lease or offer to lease in respect portion of any immovable or real property or any Leased Real Property.
(d) To The Company Group has all Company Permits necessary to permit the lawful use and operation of the business as it is currently being conducted on the Leased Real Property. The Company Group is in compliance in all material respects with all Encumbrances and other matters of record affecting the Leased Real Property, and no member of the Company Group has received any written notice alleging a default in any material respect under any Encumbrance or other matter of record. No member of the Company Group has received any written notice from any Governmental Authority asserting, nor to the Company’s knowledge, all buildings, structures, appurtenances fixtures and other improvements forming part of the Leased Real Property are in good operating conditions and are adequate and suitable for the purposes for which they are currently being used, and the Company has adequate rights of ingress and egress for the operation of the Business in the Ordinary Course. None of such buildings, structures, appurtenances, fixtures or other improvements (or any equipment therein), nor the operation or maintenance thereof, violates, in any material respectKnowledge does there exist, any restrictive covenant or any provision violation of any applicable Laws, or encroaches, in any material respect, on any property owned by others, except as disclosed in Schedule 4.8.
(e) Unless otherwise disclosed in Schedule 4.8, all of the construction work described in Schedule 4.8 has been fully paid for and completed in accordance Law with applicable Laws and the Lease for respect to the Leased Real Property.
(fe) Without limiting the generality of the foregoingThere is no tax assessment pending or, subject to the disclosures set out Company’s Knowledge, threatened in Schedule 4.8:
(i) writing with respect to any portion of the Leased Real Property. There is no writ, injunction, decree, order or judgment outstanding, nor any Proceeding pending or, to the current uses thereof and the conduct of the Business comply with all applicable LawsCompany’s Knowledge, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Laws;
(ii) no alteration, repair, improvement or other work has been ordered, directed or requested threatened in writing relating to the ownership, lease, use, occupancy or operation by any governmental authority to be done or performed to or in respect Person of the Leased Real Property Property. There are no condemnation, eminent domain or compulsory purchase proceedings or claims pending or, to the Company’s Knowledge, threatened in writing with respect to any portion of the Leased Real Property. There are no pending claims initiated by or on behalf of the Company Group to change or redefine the zoning or land use classification, and no member of the Company Group has received written notice of such claim and there is no proposed claim of such kind with respect to any of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completed, and none of the Sellers know of any written notification having been given to it of any such outstanding work being ordered, directed or requested, other than those which have been complied with;
(iii) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part thereof;
(iv) there is nothing owing in respect of the Leased Real Property by the Company to any municipal corporation or to any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the use thereof, other than current accounts in respect of which the payment due date has not yet passed and which are reserved for;
(v) no part of the Leased Real Property has been taken or expropriated by any governmental authority, nor has any notice or proceeding in respect thereof been given or commenced;
(vi) the Leased Real Property (including all buildings, improvements and fixtures) is fit for its present use, there are no material or structural repairs or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated;
(vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation of agricultural land and agricultural activities (Québec); and
(viii) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on the property tax bills for such propertyProperty.
Appears in 1 contract
Owned and Leased Real Property. (a) The Except as set out in Section (23)(a) of the Company does not ownDisclosure Letter, has never owned, and has not agreed to acquire neither the Company nor its Subsidiaries own any real or immovable property or any other hold an ownership interest in any real property (the “Owned Real Property”). The Company and/or its Subsidiaries have good, valid and legal title to all Owned Real Property owned by the Company or immovable propertyits Subsidiaries, free and clear of all Liens, expect Permitted Liens.
(b) Schedule 4.8 sets forth the municipal addresses Except as set out in Section (23)(b) of the only Company Disclosure Letter, neither the Company nor its Subsidiaries lease any real property, hold a leasehold interest in any real property, or have a licence to use and/or occupy any real property leased by save and except as listed in the Company Disclosure Letter (the “Leased Real Property”, and together with the Owned Real Property, the “Real Property”). Except as disclosed in Schedule 4.8, Section (23)(b) of the Company is not a party to any accepted promises Disclosure Letter lists all of the Leased Real Property and sets out, in respect of each lease: (i) the municipal address and applicable unit or offers to lease or sublease, agreements to lease or sublease, leases, subleases, renewals premises leased; (ii) the date of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy any premises wherever located, other than the lease and any amendments to or assignments of it; and (iii) the “Lease”original and current parties to the lease and any amendments to or assignments of it.
(c) described in Schedule 4.8 relating To the Company’s knowledge, with respect to the Leased Real Property. For clarity, for the purposes of this section 4.8, collocation services and other data center products or services offered pursuant to the Company’s customer contracts shall not be deemed to constitute a : (i) each lease or sublease for such Leased Real Property constitutes a legal, valid and binding obligation of any sort the Company or any of its Subsidiaries, as the aforementioned arrangements. Subject to the foregoing sentence and the terms of the sub-lease with identified in Schedule 4.8case may be, enforceable against the Company occupies or such Subsidiary, as the Leased Real Property case may be, in accordance with its terms and has the exclusive right to occupy and use the Leased Real Property, subject to the rights of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and ; (ii) neither the Company nornor any of its Subsidiaries, as the case may be, is in material breach of or default under any such lease or sublease and, to the Company’s knowledge, no event has occurred which, without the giving of notice or lapse of time, or both, would constitute a material breach of or default under any other party thereto, such lease or sublease; (iii) no counterparty to any such lease or sublease is in breach material default thereunder; (iv) the current use of any covenants, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together the Leased Real Property complies in all material respects with all amendments theretoapplicable Law and, to the Purchaser. The extent required, occupancy permits or certificates have been received from the applicable Governmental Entity with respect to all Leased Real Property; and (v) no third party has terminated or has the right to terminate any lease or sublease of the Company except in accordance with its terms, or with respect to the normal exercise of remedies in connection with any defaults thereunder, or in accordance with any termination rights set out therein.
(d) Except as set out in Section (23)(b) of the Company Disclosure Letter, neither the Company nor its Subsidiaries has never sub-leased, occupied (whether as lessee or licensee), managed licensed or otherwise controlled granted to any real property Person (other than the Leased Real Property.
(cCompany or any of its Subsidiaries) Except as disclosed in Schedule 4.8, the Company is not a party, as lessor right to use or sublessor, to any lease, agreement to lease or offer to lease in respect of any immovable or real property or occupy any Leased Real Property.
(de) Each Real Property is sufficient for the purpose of the business of the Company and/or its Subsidiaries as presently conducted at such Real Property location.
(f) The Company has not received notice of any suits, actions or proceedings pending or threatened against or affecting any of the Owned Real Property before any Governmental Entity.
(g) The Company has not received notice of any pending or threatened condemnation or expropriation proceedings with respect to any of the Owned Real Property.
(h) Except as disclosed in Section (23)(h) of the Company Disclosure Letter, to the Company’s knowledge, no Person has any right of first refusal, undertaking or commitment or any right or privilege capable of becoming such, to purchase any of the Owned Real Property or any of the material assets owned by the Company or its Subsidiaries (or any portion thereof or interest therein), except in connection with the Arrangement.
(i) To the Company’s knowledge, there are no disputes regarding boundaries, easements, covenants or other matters relating to any of the Owned Real Property.
(j) Except as disclosed in Section (19)(a) of the Company Disclosure Letter, to the Company’s knowledge, the current uses of the Real Property are lawful and valid under all applicable Law and the Company has received all requisite permissions authorizing such uses.
(k) To the Company’s knowledge, all buildings, structures, appurtenances fixtures required consents and other improvements forming part of the Leased Real Property are in good operating conditions and are adequate and suitable for the purposes for which they are currently being used, and the Company has adequate rights of ingress and egress for the operation of the Business in the Ordinary Course. None of such buildings, structures, appurtenances, fixtures or other improvements (or any equipment therein), nor the operation or maintenance thereof, violates, in any material respect, any restrictive covenant or any provision of any applicable Laws, or encroaches, in any material respect, on any property owned by others, except as disclosed in Schedule 4.8.
(e) Unless otherwise disclosed in Schedule 4.8, all of the construction work described in Schedule 4.8 has approvals have been fully paid for and completed in accordance with applicable Laws and the Lease for the Leased Real Property.
(f) Without limiting the generality of the foregoing, subject to the disclosures set out in Schedule 4.8:
(i) the Leased Real Property, the current uses thereof and the conduct of the Business comply with all applicable Laws, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Laws;
(ii) no alteration, repair, improvement or other work has been ordered, directed or requested in writing by any governmental authority to be done or performed to or obtained in respect of the Leased development of the Owned Real Property and any alteration, extension or to any of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completed, and none of the Sellers know of any written notification having been given to it of any such outstanding work being ordered, directed or requested, other than those which have been complied with;
(iii) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part improvement thereof;
(iv) there is nothing owing in respect of the Leased Real Property by the Company to any municipal corporation or to any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the use thereof, other than current accounts in respect of which the payment due date has not yet passed and which are reserved for;
(v) no part of the Leased Real Property has been taken or expropriated by any governmental authority, nor has any notice or proceeding in respect thereof been given or commenced;
(vi) the Leased Real Property (including all buildings, improvements and fixtures) is fit for its present use, there are no material or structural repairs or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated;
(vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation of agricultural land and agricultural activities (Québec); and
(viii) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on the property tax bills for such property.
Appears in 1 contract
Sources: Arrangement Agreement (HEXO Corp.)
Owned and Leased Real Property. (a) The Company does and the Subsidiaries do not own, has never owned, and has not agreed to acquire own any real property. Schedule 3.9 contains a list and brief description of all of the real property subject to one or immovable property more leases (the "Leased Real Property"), including the names of the lessor and the lessee. Except as stated in Schedule 3.9, the Leased Real Property constitutes all real properties used or any other ownership interest occupied by the Company and the Subsidiaries in any real or immovable propertythe connection with the Business.
(b) Schedule 4.8 sets forth the municipal addresses of the only real property leased by the Company (the “Leased Real Property”). Except as disclosed in set forth on Schedule 4.83.9, the Company is not a party to any accepted promises or offers to lease or sublease, agreements to lease or sublease, leases, subleases, renewals of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy any premises wherever located, other than the lease (the “Lease”) described in Schedule 4.8 relating with respect to the Leased Real Property. For clarity, for the purposes of this section 4.8, collocation services and other data center products or services offered pursuant :
(i) to the best knowledge of the Company’s customer contracts shall , no portion thereof is subject to any pending condemnation Proceeding or Proceeding by any public or quasi-public authority and there is no threatened condemnation or Proceeding with respect thereto;
(ii) all buildings and structures located on the Leased Real Property, as well as the operation and maintenance thereof, comply in all material respects with all applicable Legal Requirements, and do not be deemed to constitute a lease or sublease violate in any respect the rights of any sort or Person;
(iii) no notice of any increase in the assessed valuation of the aforementioned arrangements. Subject to the foregoing sentence and the terms of the sub-lease with identified in Schedule 4.8, the Company occupies the Leased Real Property and no notice of any contemplated special assessment has been received by the exclusive right Company or any Affiliate thereof and there is no threatened increase in assessed valuation or threatened special assessment pertaining to occupy and use any of the Leased Real Property, subject to the rights of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and neither the Company nor, to the Company’s knowledge, any other party thereto, is in breach of any covenants, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments thereto, to the Purchaser. The Company has never leased, occupied (whether as lessee or licensee), managed or otherwise controlled any real property other than the Leased Real Property.
(c) Except as disclosed in Schedule 4.8, the Company is not a party, as lessor or sublessor, to any lease, agreement to lease or offer to lease in respect of any immovable or real property or any Leased Real Property.
(d) To the Company’s knowledge, all buildings, structures, appurtenances fixtures and other improvements forming part of the Leased Real Property are in good operating conditions and are adequate and suitable for the purposes for which they are currently being used, and the Company has adequate rights of ingress and egress for the operation of the Business in the Ordinary Course. None of such buildings, structures, appurtenances, fixtures or other improvements (or any equipment therein), nor the operation or maintenance thereof, violates, in any material respect, any restrictive covenant or any provision of any applicable Laws, or encroaches, in any material respect, on any property owned by others, except as disclosed in Schedule 4.8.
(e) Unless otherwise disclosed in Schedule 4.8, all of the construction work described in Schedule 4.8 has been fully paid for and completed in accordance with applicable Laws and the Lease for the Leased Real Property.
(f) Without limiting the generality of the foregoing, subject to the disclosures set out in Schedule 4.8:
(i) the Leased Real Property, the current uses thereof and the conduct of the Business comply with all applicable Laws, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Laws;
(ii) no alteration, repair, improvement or other work has been ordered, directed or requested in writing by any governmental authority to be done or performed to or in respect of the Leased Real Property or to any of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completed, and none of the Sellers know of any written notification having been given to it of any such outstanding work being ordered, directed or requested, other than those which have been complied with;
(iii) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part thereof;
(iv) there are no contracts, agreements, instruments, licenses, commitments, leases or similar document, written or oral, to which the Company or any Affiliate thereof is nothing owing in respect a party, granting to any one or more Persons the right of use or occupancy of any portion of the parcels of the Leased Real Property by the Company to any municipal corporation or to any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the use thereof, other than current accounts in respect of which the payment due date has not yet passed and which are reserved for;Property; and
(v) there are no part Persons (other than the Company, the Subsidiaries or its lessees disclosed pursuant to clause (iv) above) in possession of the Leased Real Property has been taken or expropriated by any governmental authority, nor has any notice or proceeding in respect thereof been given or commenced;
(vi) the Leased Real Property (including all buildings, improvements and fixtures) is fit for its present use, there are no material or structural repairs or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated;
(vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation of agricultural land and agricultural activities (Québec); and
(viii) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on the property tax bills for such propertyProperty.
Appears in 1 contract
Sources: Stock and Warrant Purchase Agreement (Safety 1st Inc)
Owned and Leased Real Property. (a) The Company SRT does not own, has never ownedand the Acquired Assets do not include, and has not agreed to acquire any real property. The Disclosure Schedule lists all real property leased or immovable property subleased to SRT or any included in the Acquired Assets. Seller has set forth on the Disclosure Schedule and made available to Buyer correct and complete copies of the leases and subleases (as amended to date) listed therein (the "LEASES"). With respect to each such Lease:
(a) the Lease is a legal, valid, binding and enforceable obligation of SRT or Seller (as the case may be) and, to Seller's knowledge, each other ownership interest in any real party to such Lease, except as enforceability as to such other party may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or immovable property.other similar laws relating to or affecting the rights of creditors generally and by equitable principles, including those limiting the availability of specific performance, injunctive relief and other equitable remedies and those providing for equitable defenses;
(b) Schedule 4.8 sets forth the municipal addresses of the only real property leased by the Company (the “Leased Real Property”). Except as disclosed in Schedule 4.8, the Company is not a party to any accepted promises neither SRT or offers to lease or sublease, agreements to lease or sublease, leases, subleases, renewals of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy any premises wherever located, other than the lease (the “Lease”) described in Schedule 4.8 relating to the Leased Real Property. For clarity, for the purposes of this section 4.8, collocation services and other data center products or services offered pursuant to the Company’s customer contracts shall not be deemed to constitute a lease or sublease of any sort or any of the aforementioned arrangements. Subject to the foregoing sentence and the terms of the sub-lease with identified in Schedule 4.8, the Company occupies the Leased Real Property and has the exclusive right to occupy and use the Leased Real Property, subject to the rights of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and neither the Company Seller nor, to the Company’s Seller's knowledge, any other party thereto, to the Lease is in breach of any covenants, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments theretodefault and, to the Purchaser. The Company Seller's knowledge, no event has never leasedoccurred which, occupied (whether as lessee with notice or licensee)lapse of time or both, managed would constitute a breach or otherwise controlled any real property other than the Leased Real Property.default or permit termination, modification or acceleration thereunder;
(c) Except to Seller's knowledge, there are no disputes, oral agreements or forbearance programs in effect as disclosed in Schedule 4.8, to the Company is not a party, as lessor or sublessor, to any lease, agreement to lease or offer to lease in respect of any immovable or real property or any Leased Real Property.Lease;
(d) To the Company’s knowledgeneither SRT nor Seller has assigned, all buildingstransferred, structuresconveyed, appurtenances fixtures and other improvements forming part of the Leased Real Property are mortgaged, deeded in good operating conditions and are adequate and suitable for the purposes for which they are currently being used, and the Company has adequate rights of ingress and egress for the operation of the Business trust or encumbered any interest in the Ordinary Course. None of such buildings, structures, appurtenances, fixtures leasehold or other improvements (or any equipment therein), nor subleasehold to the operation or maintenance thereof, violates, in any material respect, any restrictive covenant or any provision of any applicable Laws, or encroaches, in any material respect, on any property owned by others, except as disclosed in Schedule 4.8.Lease;
(e) Unless otherwise disclosed in Schedule 4.8to Seller's knowledge, all of there are no pending or overtly threatened condemnation proceedings, lawsuits or administrative actions with respect to the construction work described in Schedule 4.8 has been fully paid for and completed in accordance with applicable Laws and property subject to the Lease for the Leased Real Property.Lease; and
(f) Without limiting neither SRT nor Seller has waived any material rights under the generality of the foregoing, subject to the disclosures set out in Schedule 4.8:
(i) the Leased Real Property, the current uses thereof and the conduct of the Business comply with all applicable Laws, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Laws;
(ii) no alteration, repair, improvement or other work has been ordered, directed or requested in writing by any governmental authority to be done or performed to or in respect of the Leased Real Property or to any of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completed, and none of the Sellers know of any written notification having been given to it of any such outstanding work being ordered, directed or requested, other than those which have been complied with;
(iii) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part thereof;
(iv) there is nothing owing in respect of the Leased Real Property by the Company to any municipal corporation or to any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the use thereof, other than current accounts in respect of which the payment due date has not yet passed and which are reserved for;
(v) no part of the Leased Real Property has been taken or expropriated by any governmental authority, nor has any notice or proceeding in respect thereof been given or commenced;
(vi) the Leased Real Property (including all buildings, improvements and fixtures) is fit for its present use, there are no material or structural repairs or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated;
(vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation of agricultural land and agricultural activities (Québec); and
(viii) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on the property tax bills for such propertyLease.
Appears in 1 contract
Owned and Leased Real Property. (a) The Company does not own, has never owned, and has not agreed to acquire any real or immovable property or any other ownership interest in any real or immovable property.
(bSection 4.11(a) Schedule 4.8 sets forth the municipal addresses of the only Disclosure Letter contains (i) a correct and complete list (including address, record owner, legal description, duration of ownership and description of uses) of all interests in real property leased owned by the Company or any of its Subsidiaries (all such real property, together with all buildings, structures and other improvements and fixtures located on or under such real property and all easements, rights and other appurtenances to such real property are collectively referred to herein as the “Owned Real Property”) and (ii) a correct and complete description of all leases, licenses, permits, subleases and occupancy agreements or arrangements, together with any amendments thereto (each a “Real Property Lease” and collectively, the “Real Property Leases”), with respect to real property which the Company or any of its Subsidiaries are a party to, bound by or enjoy the benefits of (the “Leased Real Property”). Except as disclosed in Schedule 4.8” and, together with the Company is not a party to any accepted promises or offers to lease or sublease, agreements to lease or sublease, leases, subleases, renewals of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy any premises wherever located, other than the lease (the “Lease”) described in Schedule 4.8 relating to the Leased Real Property. For clarity, for the purposes of this section 4.8, collocation services and other data center products or services offered pursuant to the Company’s customer contracts shall not be deemed to constitute a lease or sublease of any sort or any of the aforementioned arrangements. Subject to the foregoing sentence and the terms of the sub-lease with identified in Schedule 4.8, the Company occupies the Leased Real Property and has the exclusive right to occupy and use the Leased Owned Real Property, subject to the rights “Real Property”), including the address and a description of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and neither uses by the Company nor, to the Company’s knowledge, any other party thereto, is in breach and its Subsidiaries of any covenants, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments thereto, to the Purchaser. The Company has never leased, occupied (whether as lessee or licensee), managed or otherwise controlled any real property other than the Leased Real Property.
(b) There are no leases, subleases, licenses, occupancy agreements, options to purchase, rights of first refusal, rights of first offer, conditional sales or similar rights with respect to any of the Real Property (other than the Real Property Leases), and there are no parties in possession of the Real Property other than the Company or its Subsidiaries.
(c) Except as disclosed The Company and its Subsidiaries own good, valid and marketable title to each parcel of the Owned Real Property in Schedule 4.8which it has an interest, in each case free and clear of any Liens other than Permitted Liens. Neither the Company is not a partynor any of its Subsidiaries has received any written notice that it has violated, as lessor any Law applicable to the ownership or sublessor, to any lease, agreement to lease or offer to lease in respect operation of any immovable or real property the Owned Real Property or any Leased covenant, condition, easement or restriction of record affecting any of the Owned Real Property.
(d) To The Real Property constitutes all of the Company’s knowledgeland, all buildings, structures, appurtenances improvements, fixtures and other improvements forming part interests and rights in real property that are used or occupied by the Company and its Subsidiaries in connection with the business of the Leased Company and its Subsidiaries. All of the Real Property has access to public roads and to all utilities necessary for the operation of the business of the Company and its Subsidiaries as now conducted. Neither the Company nor any of its Subsidiaries have received any notice of any discontinuation of presently available or otherwise necessary access, sewer, water, electric, gas, telephone or other utilities or services for the Real Property and, to the Company’s Knowledge, there do not exist any adverse claims to such access, sewer, water, electric, gas, telephone or other utilities or services that would materially adversely affect the use currently being made of such access, sewer, water, electric, gas, telephone or other utilities or services. All public utilities required for the operation of the Real Property and necessary for the conduct of the business of the Company and its Subsidiaries are installed and operating, and all installation and connection charges, to the Company’s Knowledge are paid in good operating conditions full.
(e) There is no pending or, to the Company’s Knowledge, threatened Legal Action regarding condemnation or other eminent domain matter affecting any of the Owned Real Property or any sale or other disposition of any of the Owned Real Property in lieu of condemnation.
(f) Each parcel of the Owned Real Property is assessed separately from all other adjacent property for purposes of real estate taxes. No action seeking a reduction in real estate taxes imposed upon the Owned Real Property or the assessed valuation thereof (or any portion thereof) (1) has been settled since the Acquisition Date or (2) is currently pending.
(g) True, correct and are complete copies of all material plans and specifications relating to the Real Property in the possession or control of the Seller have been made available to Buyer.
(h) Neither the Company nor any of its Subsidiaries has any oral or written agreement with any real estate broker, agent or finder with respect to the Real Property.
(i) No Person (other than the Company or any of its Subsidiaries) has any interest in, or rights to, the mineral, oil, gas, and other natural resources arising from the Real Property.
(j) All of the Owned Real Property (i) has been maintained in accordance with historical practices with, to the Company’s Knowledge, no material items of deferred maintenance or capital expenditures, and (ii) is adequate and and, to the Company’s Knowledge, suitable for the purposes for which they it is presently being used. To the Company’s Knowledge, there are no material structural defects with respect to the buildings, structures and other improvements situated on any Owned Real Property. None of the improvements located on the Real Property or uses being made of the Real Property requires any special dispensation, variance or special permit under any Law that has not been properly obtained.
(k) The Company has made available to Buyer true, correct and complete copies of all deeds, title exception documents (for example, easements and restrictive covenants), title reports and title polices (collectively, “Existing Title Documents”) for any of the Real Property in the possession or control of the Company or any of its Subsidiaries. The Company also has made available to Buyer true, correct and complete copies of all surveys for any of the Real Property in the possession or control of the Company or any of its Subsidiaries (“Existing Surveys”). Since the Acquisition Date, no claim has been made under any of the Existing Title Documents or Existing Surveys. The Company has made available to Buyer true, correct and complete copies of any Judgment entered, issued, made or rendered by, or any Contract with, any Governmental Entity in connection with or relating to any of the Owned Real Property.
(l) To the Company’s Knowledge, (i) there are no plans of any Governmental Entity to change the highway or road system in the vicinity of any Real Property or to restrict or change access from any such highway or road to any Real Property that could adversely affect access to any roads providing a means of ingress to or egress from any Real Property, and (ii) there is no pending or proposed action to change or redefine the zoning classification of all or any portion of any of the Real Property.
(m) The Company has made available to Buyer true, correct and complete copies of all material reports of inspection of the Real Property under all applicable federal, state and local health and safety Laws, and all correspondence relating thereto, that are in the Company’s possession. Neither the Company nor any of its Subsidiaries has received notice from any insurance carrier regarding defects or inadequacies in the Real Property, which, if not corrected, would result in termination of the insurance coverage or an increase in cost. There are no outstanding requirements or recommendations by any insurance company which has issued to the Company or any of its Subsidiaries a policy covering the Real Property requiring or recommending any repairs or work to be done on such Real Property.
(n) The Company and each of its Subsidiaries possess all licenses, permits and authorizations required by any Governmental Entity for the ownership (if applicable), operation and use of the Real Property as it is currently being used, and the Company has adequate rights of ingress and egress for the operation of the Business in the Ordinary Course. None of such buildings, structures, appurtenances, fixtures or other improvements (or any equipment therein), the Real Property nor the operation or maintenance thereof, violatesmaterially violates any applicable building, in any material respectzoning or other land-use laws or insurance requirements applicable thereto or, materially violates any restrictive covenant or any provision of any applicable Laws, or encroaches, in any material respect, on any property owned by others, except as disclosed in Schedule 4.8other title exception.
(eo) Unless otherwise disclosed in Schedule 4.8True, all complete and accurate copies of the construction work described Real Property Leases, or if any Real Property Leases are not in Schedule 4.8 writing, true, complete and accurate descriptions thereof, have been made available to Buyer.
(p) Each Real Property Lease is valid and binding on the Company and any of its Subsidiaries party thereto and, to the Company’s Knowledge, each other party thereto, and is in full force and effect. There is no breach or default under any Real Property Lease by the Company or any of its Subsidiaries or, to the Company’s Knowledge, any other party thereto. No event has been fully paid for occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Real Property Lease by the Company or any of its Subsidiaries or, to the Company’s Knowledge, any other party thereto. No amount due under any of the Real Property Leases remains unpaid. The Company or one of its Subsidiaries that is either the tenant or licensee named under a Real Property Lease has a good and completed valid leasehold interest in accordance with applicable Laws and the Lease for the Leased Real Property.
(f) Without limiting the generality of the foregoing, Property that is subject to the disclosures set out Real Property Lease and is in Schedule 4.8:
(i) sole possession of the Leased Real Property purported to be leased or licensed thereunder. Neither the Company nor any of its Subsidiaries has assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in any Real Property Lease, subleased all or any part of the space demised thereby, or granted any right to the possession, use, occupancy or enjoyment of any Leased Real Property, to any third party. No option has been exercised under any of such Real Property Leases, except options whose exercise has been evidenced by a written document, a true, correct and complete copy of which has been made available to Buyer with the current uses thereof and corresponding Real Property Lease. Subject to the conduct receipt of the Business comply with all applicable Lawsconsents set forth in Section 4.6 of the Disclosure Letter, including those dealing with zoningand other than as a result of circumstances unique to Buyer, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Laws;
(ii) no alteration, repair, improvement or other work has been ordered, directed or requested in writing by any governmental authority Real Property Lease will cease to be done legal, valid, binding, enforceable and in full force and effect on terms identical to those currently in effect or performed require consent or notice solely as a result of the consummation of any of the transactions contemplated by this Agreement, nor will the consummation of any such transactions constitute a breach or default under any such Real Property Lease or otherwise give the landlord a right to or in respect terminate such Real Property Lease. Neither the Company nor any of its Subsidiaries has received any written notice that it has violated, any Law applicable to the operation of the Leased Real Property or to any covenant, condition, easement or restriction of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completed, and none of the Sellers know of record affecting any written notification having been given to it of any such outstanding work being ordered, directed or requested, other than those which have been complied with;
(iii) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid Property. All brokerage commissions and satisfied, other compensation and no Person is entitled to register a legal hypothec against the Leased Real Property or any part thereof;
(iv) there is nothing owing in respect of the Leased Real Property fees payable by the Company or Subsidiaries by reason of the Real Property Leases have been paid in full, and to any municipal corporation or to the Company’s Knowledge, all brokerage commissions and other compensation and fees payable by any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the use thereof, other than current accounts in respect of which the payment due date has not yet passed and which are reserved for;
(v) no part Persons by reason of the Leased Real Property has Leases have been taken or expropriated by any governmental authority, nor has any notice or proceeding paid in respect thereof been given or commenced;
(vi) the Leased Real Property (including all buildings, improvements and fixtures) is fit for its present use, there are no material or structural repairs or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated;
(vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation of agricultural land and agricultural activities (Québec); and
(viii) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on the property tax bills for such propertyfull.
Appears in 1 contract
Owned and Leased Real Property. (a) The Neither the Company does not own, has never owned, and has not agreed to acquire nor the Subsidiary owns any real or immovable property or any other ownership interest in any real or immovable property.
(b. Section 2.14(a) Schedule 4.8 sets forth the municipal addresses of the only Disclosure Schedule lists all real property leased by or subleased to the Company or the Subsidiary as of the date of this Agreement or leased by Parent, Seller or an Affiliate of Seller other than the Company or a Subsidiary and are used in the conduct of the business of the Company or the Subsidiary (the “"Leased Real Property”"). Except as disclosed in Schedule 4.8, Neither the Company is not a party to any accepted promises or offers to lease or sublease, agreements to lease or sublease, leases, subleases, renewals of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy any premises wherever located, other than nor the lease (the “Lease”) described in Schedule 4.8 relating to the Leased Real Property. For clarity, for the purposes of this section 4.8, collocation services and other data center products or services offered pursuant to the Company’s customer contracts shall not be deemed to constitute a lease or sublease of any sort or any of the aforementioned arrangements. Subject to the foregoing sentence and the terms of the sub-lease with identified in Schedule 4.8, the Company occupies the Leased Real Property and has the exclusive right to occupy and use the Leased Real Property, subject to the rights of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and neither the Company nor, to the Company’s knowledge, any other party thereto, is in breach of any covenants, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments thereto, to the Purchaser. The Company has never leased, occupied (whether as lessee or licensee), managed or otherwise controlled Subsidiary uses any real property other than the Leased Real Property. Seller has made available to Buyer true, correct and complete copies of the leases and subleases (as amended to date) and other agreements for occupancy, including all amendments, extensions and other modifications thereto as of the date of this Agreement with respect to each Leased Real Property (each, a "Real Property Lease" and, collectively, the "Real Property Leases").
(b) With respect to each Real Property Lease, except as would not have a Company Material Adverse Effect:
(i) Such Real Property Lease is a legal, valid and binding obligation of the Company or the Subsidiary, and is in full force and effect;
(ii) Neither the Company or the Subsidiary, nor, to Parent's and Seller's knowledge, any other party to such Real Property Lease is in breach or default, and, to Parent's and Seller's knowledge, no event has occurred which, with notice or lapse of time, would constitute a breach or default or permit termination, modification or acceleration thereunder; and
(iii) to Parent's and Seller's knowledge, there are no disputes, oral agreements or forbearance programs in effect as to the Real Property Leases.
(c) Except as disclosed in Schedule 4.8, The Leased Real Property is sufficient for the continued conduct of the respective businesses of the Company is not a party, and the Subsidiary in substantially the same manner as lessor or sublessor, to any lease, agreement to lease or offer to lease in respect of any immovable or real property or any Leased Real Propertysuch businesses are currently conducted.
(d) To the Company’s knowledge, all buildings, structures, appurtenances fixtures and other improvements forming part of the Leased The property covered by such Real Property Leases may legally be used for the operations presently conducted thereon. The improvements on the properties are in good commercially reasonable operating conditions condition and repair and are adequate and suitable for the purposes for which they are currently being used, and the Company has adequate rights of ingress and egress for the operation of the Business in the Ordinary Course. None of such buildings, structures, appurtenances, fixtures or other improvements (or any equipment therein), nor the operation or maintenance thereof, violates, in any material respect, any restrictive covenant or any provision of any applicable Laws, or encroaches, in any material respect, on any property owned by others, except as disclosed in Schedule 4.8.
(e) Unless otherwise disclosed Neither the Company nor the Subsidiary, as applicable, has assigned, transferred, conveyed, mortgaged, deeded in Schedule 4.8, all trust or encumbered any of the construction work described its interest in Schedule 4.8 has been fully paid for and completed in accordance with applicable Laws and the Lease for the Leased Real Property.
(f) Without limiting the generality of the foregoing, subject to the disclosures set out in Schedule 4.8:
(i) the Leased Real Property, the current uses thereof and the conduct of the Business comply with all applicable Laws, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Laws;
(ii) no alteration, repair, improvement or other work has been ordered, directed or requested in writing by any governmental authority to be done or performed to or in respect of the Leased Real Property or to any of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completed, and none of the Sellers know of any written notification having been given to it of any such outstanding work being ordered, directed or requested, other than those which have been complied with;
(iii) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part thereof;
(iv) there is nothing owing in respect of the Leased Real Property by the Company to any municipal corporation or to any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the use thereof, other than current accounts in respect of which the payment due date has not yet passed and which are reserved for;
(v) no part of the Leased Real Property has been taken or expropriated by any governmental authority, nor has any notice or proceeding in respect thereof been given or commenced;
(vi) the Leased Real Property (including all buildings, improvements and fixtures) is fit for its present use, there are no material or structural repairs or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated;
(vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation of agricultural land and agricultural activities (Québec); and
(viii) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on the property tax bills for such propertyLeases.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Emergent Information Technologies Inc)
Owned and Leased Real Property. (a) The Neither Public Company does not own, has never owned, and has not agreed to acquire nor any of its Subsidiaries owns any real or immovable property or any other ownership interest in any real or immovable property.
(b) Schedule 4.8 sets forth the municipal addresses Public Company has delivered to Merger Partner complete and accurate copies of the only real property leased by the all material Leases of Public Company (the “Leased Real Property”)and its Subsidiaries. Except as disclosed in Schedule 4.8, the Neither Public Company is not a party to nor any accepted promises or offers to lease or sublease, agreements to lease or sublease, leases, subleases, renewals of leases or of subleases, permits, operating agreements or other rights or licenses to possess or to occupy Subsidiary occupies any premises wherever located, space other than the lease (the “Lease”) described in Schedule 4.8 relating to the Leased Real Property. For clarity, for the purposes of this section 4.8, collocation services and other data center products or services offered pursuant to a Lease. With respect to each such Lease, except as would not, individually or in the Company’s customer contracts shall not aggregate, reasonably be deemed expected to constitute result in a lease or sublease of any sort or any of the aforementioned arrangements. Subject to the foregoing sentence and the terms of the sub-lease with identified in Schedule 4.8, the Public Company occupies the Leased Real Property and has the exclusive right to occupy and use the Leased Real Property, subject to the rights of the landlord under the Lease and applicable Law. The Material Adverse Effect:
(i) such Lease is in good standing legal, valid, binding, enforceable and in full force and effecteffect against Public Company or its Subsidiary that is the party thereto, and neither the Company noras applicable, and, to the Knowledge of Public Company’s knowledge, against each other party thereto;
(ii) such Lease will continue to be legal, valid, binding, enforceable and in full force and effect against Public Company or the Subsidiary that is the party thereto, as applicable, and, to the Knowledge of Public Company, against each other party thereto immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing;
(iii) none of Public Company, any Subsidiary of Public Company or, to the Knowledge of Public Company, any other party, is in breach or violation of, or default under, any such Lease, and no event has occurred, is pending or, to the Knowledge of Public Company, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute any such breach or default by Public Company or any Subsidiary of Public Company or, to the Knowledge of Public Company, any other party theretounder such Lease; and no event has occurred that would give rise to a termination right under such Lease;
(iv) neither Public Company nor any Subsidiary of Public Company has assigned, is transferred, conveyed, mortgaged, subleased, licensed, deeded in breach of trust or encumbered any covenants, conditions interest in the leasehold or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments thereto, subleasehold; and
(v) to the Purchaser. The Company has never leasedKnowledge of Public Company, occupied there are no Liens (whether as lessee or licensee), managed or otherwise controlled any other than Permitted Liens) applicable to the real property other than subject to such Lease which would reasonably be expected to impair the Leased Real Propertycurrent uses or the occupancy by Public Company or any Subsidiary of Public Company of the property subject thereto.
(c) Except as disclosed Each of Public Company and its Subsidiaries owns, and has good and valid title to, or, in Schedule 4.8the case of leased properties and assets, the Company is not a party, as lessor or sublessor, to any lease, agreement to lease or offer to lease in respect of any immovable or real property or any Leased Real Property.
(d) To the Company’s knowledgevalid leasehold interests in, all buildings, structures, appurtenances fixtures tangible properties or tangible assets and other improvements forming part of the Leased Real Property are equipment used or held for use in good operating conditions and are adequate and suitable for the purposes for which they are currently being used, and the Company has adequate rights of ingress and egress for the operation of the Business in the Ordinary Course. None of such buildings, structures, appurtenances, fixtures its business or other improvements (operations or any equipment therein), nor the operation or maintenance thereof, violatespurported to be owned by it, in any each case, that are material respectto Public Company and its Subsidiaries, any restrictive covenant or any provision of any applicable Lawstaken as a whole, or encroaches, in any material respect, on any property owned by others, except as disclosed in Schedule 4.8.
including: (e) Unless otherwise disclosed in Schedule 4.8, all of the construction work described in Schedule 4.8 has been fully paid for and completed in accordance with applicable Laws and the Lease for the Leased Real Property.
(f) Without limiting the generality of the foregoing, subject to the disclosures set out in Schedule 4.8:
(i) the Leased Real Property, the current uses thereof and the conduct of the Business comply with all applicable Laws, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Laws;
(ii) no alteration, repair, improvement or other work has been ordered, directed or requested in writing by any governmental authority to be done or performed to or in respect of the Leased Real Property or to any of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completed, and none of the Sellers know of any written notification having been given to it of any such outstanding work being ordered, directed or requested, other than those which have been complied with;
(iiiA) all accounts for work and services performed and materials placed or furnished upon or in respect of the Leased Real Property have been fully paid and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part thereof;
(iv) there is nothing owing in respect of the Leased Real Property by the Company to any municipal corporation or to any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the use thereof, other than current accounts in respect of which the payment due date has not yet passed and which are reserved for;
(v) no part of the Leased Real Property has been taken or expropriated by any governmental authority, nor has any notice or proceeding in respect thereof been given or commenced;
(vi) the Leased Real Property (including all buildings, improvements and fixtures) is fit for its present use, there are no material or structural repairs or replacements that are necessary or advisable and, without limiting the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplated;
(vii) the Leased Real Property is not classified or otherwise protected under an Act respecting the preservation of agricultural land and agricultural activities (Québec); and
(viii) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there are no outstanding levies, charges or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as tangible assets reflected on the property tax bills for Public Company Financial Statements and (B) all other such propertytangible assets reflected in the books and records of Public Company or any of its Subsidiaries as being owned by Public Company or such Subsidiary. All of such assets are owned or, in the case of leased assets, leased by Public Company or any of its Subsidiaries free of any Liens other than Permitted Liens.
Appears in 1 contract
Sources: Merger Agreement (Calyxt, Inc.)
Owned and Leased Real Property. (a) The Company does not own, has never owned, Disclosure Schedule lists the address and has not agreed legal description of all Owned Real Property. With respect to acquire any real or immovable property or any other ownership interest in any real or immovable property.the Owned Real Property:
(bi) Schedule 4.8 sets forth The Seller has good and marketable fee simple title to the municipal addresses of the only real property leased by the Company (the “Leased Owned Real Property”). Except as disclosed in Schedule 4.8, the Company is not a party to any accepted promises or offers to lease or subleasefree and clear of all mortgages, agreements to lease or subleasepledges, leasessecurity interests, subleasesencumbrances, renewals of leases or of subleases, permits, operating agreements charges or other rights liens (whether arising by contract or licenses to possess or to occupy any premises wherever locatedby operation of law), other than (A) liens for Taxes not yet due and payable, (B) liens for Taxes which are being contested in good faith and by appropriate proceedings, and (C) liens and encumbrances which do not materially and adversely impair the lease (use of the “Lease”) described in Schedule 4.8 relating to the Leased Owned Real Property. For clarity, Property for the purposes of this section 4.8, collocation services and other data center products or services offered pursuant to the Company’s customer contracts shall not be deemed to constitute a lease or sublease of any sort or any of the aforementioned arrangements. Subject to the foregoing sentence and the terms of the sub-lease with identified in Schedule 4.8, the Company occupies the Leased Real Property and has the exclusive right to occupy and use the Leased Real Property, subject to the rights of the landlord under the Lease and applicable Law. The Lease is in good standing and in full force and effect, and neither the Company nor, to the Company’s knowledge, any other party thereto, is in breach of any covenants, conditions or obligations contained therein. The Sellers have provided a true copy of each Lease, together with all amendments thereto, to the Purchaser. The Company has never leased, occupied (whether as lessee or licensee), managed or otherwise controlled any real property other than the Leased Real Property.
(c) Except as disclosed in Schedule 4.8, the Company is not a party, as lessor or sublessor, to any lease, agreement to lease or offer to lease in respect of any immovable or real property or any Leased Real Property.
(d) To the Company’s knowledge, all buildings, structures, appurtenances fixtures and other improvements forming part of the Leased Real Property are in good operating conditions and are adequate and suitable for the purposes for which they are currently being used, and the Company has adequate rights of ingress and egress for the operation conduct of the Business in the Ordinary Course. None of such buildings, structures, appurtenances, fixtures or other improvements (or any equipment therein), nor the operation or maintenance thereof, violates, manner in any material respect, any restrictive covenant or any provision of any applicable Laws, or encroaches, in any material respect, on any property owned by others, except as disclosed in Schedule 4.8.
(e) Unless otherwise disclosed in Schedule 4.8, all of the construction work described in Schedule 4.8 has been fully paid for and completed in accordance with applicable Laws and the Lease for the Leased Real Property.
(f) Without limiting the generality of the foregoing, subject to the disclosures set out in Schedule 4.8:
(i) the Leased Real Property, the current uses thereof and the conduct of the Business comply with all applicable Laws, including those dealing with zoning, parking, access, loading facilities, landscaped areas, building construction, fire and public health and safety and Environmental Lawswhich it is currently operated;
(ii) There are no alterationpending or, repairto the Seller's knowledge, improvement threatened condemnation proceedings, lawsuits or other work has been ordered, directed or requested in writing by any governmental authority administrative actions with respect to be done or performed to or in respect of the Leased Owned Real Property or to any of the plumbing, heating, elevating, elevator, escalator, moving walk, water, drainage or electrical systems, fixtures or works therein or thereon, which has not been completed, and none of the Sellers know of any written notification having been given to it of any such outstanding work being ordered, directed or requested, other than those which have been complied withProperty;
(iii) All facilities have received all accounts for work material approvals of Governmental Entities (including licenses and services performed and materials placed Permits) required in connection with the ownership or furnished upon or in respect of the Leased Real Property have been fully paid and satisfied, and no Person is entitled to register a legal hypothec against the Leased Real Property or any part operation thereof;
(iv) there is nothing owing in respect of the Leased Real Property by the Company There are no written arrangements granting to any municipal corporation party or to parties the right of use or occupancy of any other corporation or commission owning or operating a public utility for water, gas, electrical power or energy, steam or hot water, or for the use thereof, other than current accounts in respect portion of which the payment due date has not yet passed and which are reserved forsuch parcel;
(v) There are no part outstanding options or rights of the Leased Real Property has been taken first refusal to purchase such parcel, or expropriated by any governmental authority, nor has any notice portion thereof or proceeding in respect thereof been given or commencedinterest therein;
(vi) There are no parties (other than the Seller) in possession of such parcel, other than tenants under leases disclosed in the Disclosure Schedule who are in possession of space to which they are entitled; and
(vii) Each of the Owned Real Property and the leased Real Property has access, sufficient for the conduct of the Business as now conducted, to public roads and to all utilities, including electricity, sanitary and storm sewer, potable water, natural gas and other utilities, currently used in the operation of the Business at that location.
(b) The Disclosure Schedule lists all Leased Real Property Property. Seller has made available to Buyer correct and complete copies of the leases and subleases (as amended to date) listed therein (the "Leases"). With respect to each such Lease:
(i) The Lease is a legal, valid, binding and enforceable obligation of Seller and, to Seller's knowledge, each other party to such Lease, except as enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights of creditors generally and by equitable principles, including all buildingsthose limiting the availability of specific performance, improvements injunctive relief and fixturesother equitable remedies and those providing for equitable defenses;
(ii) Neither Seller nor, to Seller's knowledge, any other party to the Lease is fit for its present usein breach or default and, to Seller's knowledge, no event has occurred which, with notice or lapse of time or both, would constitute a breach or default or permit termination, modification or acceleration thereunder;
(iii) To Seller's knowledge, there are no material disputes, oral agreements or structural repairs or replacements that are necessary or advisable and, without limiting forbearance programs in effect as to the foregoing, there are no repairs to, or replacements of, the roof or the mechanical, electrical, heating, ventilating, air conditioning, water, plumbing or drainage equipment or systems located in or servicing the Leased Real Property that are necessary for the purposes of operating the Data Center in the Ordinary Course; and the Leased Real Property is not currently undergoing any alteration or renovation nor is any such alteration or renovation contemplatedLease;
(viiiv) Seller has not assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in the Leased Real Property is not classified leasehold or otherwise protected under an Act respecting subleasehold to the preservation of agricultural land and agricultural activities (Québec)Lease; and
(viiiv) the Leased Real Property is fully serviced by public utilities necessary for the occupation of such property and has suitable access to public roads, and there There are no outstanding leviespending or, charges to Seller's knowledge, threatened condemnation proceedings, lawsuits or fees assessed against any Leased Real Property by each governmental authority (including development or improvement levies, charges or fees) other than as reflected on administrative actions with respect to the property tax bills for such propertysubject to the Lease.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Thermo Electron Corp)