Real and Personal Property. (a) Section 3.14(a) of the Company Disclosure Letter sets forth a correct and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company Owned Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects. (b) Section 3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease. (c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease. (d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business. (e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 3 contracts
Sources: Rights Agreement (K Tron International Inc), Merger Agreement (K Tron International Inc), Merger Agreement (Hillenbrand, Inc.)
Real and Personal Property. (a) Section 3.14(a3.16(a) of the Company Disclosure Letter sets forth a correct and complete list of all Company Owned Real Property showing real property owned by the address and record titleholder thereof. The Company or a any Company Subsidiary as of the date of this Agreement. Each of the Company and each Company Subsidiary has good good, valid and marketable fee simple title to, or valid leasehold or other equivalent use and/or occupancy interests in, all its tangible properties and assets except for Permitted Liens or minor defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially decrease the value of such properties and assets or materially interfere with its ability to all conduct its business as currently conducted. All such assets and properties, other than assets and properties in which the Company Owned Real Propertyor any of the Company Subsidiaries has leasehold interests, are free and clear of any Liens, other than all Liens except for Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b3.16(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leaseseach lease, subleases sublease, license or similar use, co-working service and other occupancy agreements Contract (together each, a “Lease”), in accordance with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary (other than SpinCo and its Subsidiaries) leases, subleases or otherwise uses or occupies any real property and the address of such real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”)) as of the date of this Agreement. The Company has heretofore made available to provided Parent true a correct and complete copies copy of each such Lease, and all Company Leases. amendments thereto.
(c) The Company and each Company Subsidiary, as applicable, have valid leasehold or a sublease interests in all of the Company Subsidiary has good and valid title to the leasehold estate created under the respective Company LeasesLeased Real Property, in each case free and clear of any all Liens, other than Permitted Liens. Each The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leases Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases.
(d) Each Lease for any Company Leased Real Property is in full force and effect and constitutes a legal, valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the applicable Company Subsidiary. To the knowledge Knowledge of the Company, the other parties thereto.
(e) Neither the Company nor any Company Subsidiary has received any written communication from, or delivered any written communication to, any other party to a Lease for any Company Leased Real Property or any lender, nor, to the Knowledge of the Company, is there any other party alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(f) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: (i) to the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property, (ii) neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under a party to any Company Leaseagreement, nor or has any notice outstanding right of default been received first offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein, and (which has not been previously curediii) by to the Company Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing to take all or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms portion of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to interest therein by eminent domain or any Person condemnation proceeding (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously curedjurisdictional equivalent thereof) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default sale or notice of default that, individually or disposition in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Leaselieu thereof.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 3 contracts
Sources: Merger Agreement (Biohaven Research Ltd.), Merger Agreement (Biohaven Research Ltd.), Merger Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Real and Personal Property. (a) Neither the Company nor any Company Subsidiary owns any real property, or has owned any real property within the past five (5) years.
(b) Section 3.14(a3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of all Company Owned Real Property showing the address each lease, sublease, license or similar use, co-working service and record titleholder thereof. The Company or occupancy Contract (each, a Company Subsidiary has good and marketable fee simple title to all Company Owned Real Property“Lease”), free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary accordance with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise uses or occupies any real property and the address of such real property or obtains co-working services from or to any other Person (whether as a tenant or subtenant or in accordance with other occupancy or service arrangements) (the “Company Leased Real Property”). ) and the Company has provided a correct and complete copy of each such Lease, and all amendments thereto.
(c) The Company has heretofore made available to Parent true and complete copies each Company Subsidiary, as applicable, have valid leasehold or sublease interests in all of all the Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company LeasesLeased Real Property, in each case free and clear of any all Liens, other than Permitted Liens. Each The Company and each Company Subsidiary enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property in all material respects, and are using such Company Leased Real Property for the purposes permitted by the applicable Leases, which Company Leased Real Properties are in all material respects in good operating condition and repair and free from any material defects, reasonable wear and tear excepted.
(d) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect, the Company and each Company Subsidiary have good and marketable title to, or other comparable Contracts rights in, all of the tangible properties and assets that are used in and material to the operation of the business of the Company Leases and each Company Subsidiary, free and clear of all Liens, other than Permitted Liens.
(e) Each Lease for any Company Leased Real Property is in full force and effect and constitutes a legal, valid and binding obligation of the Company or any Company Subsidiary that is a party thereto, as applicable, and to the applicable Company Subsidiary. To the knowledge Knowledge of the Company, neither the other parties thereto.
(f) Neither the Company nor any Company Subsidiary has received any communication from, or delivered any communication to, any other party to a Lease for any Company Leased Real Property or any lender, alleging that the Company, any Company Subsidiary or such other party, as the case may be, is in material breach or violation of or default under such Lease.
(g) To the Knowledge of the Company, no Person, other than the Company or any Company Subsidiary, possesses, uses or occupies all or any portion of any Company Leased Real Property. Neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under a party to any Company Leaseagreement, nor or has any notice outstanding right of default been received (which has not been previously cured) by first offer, right of first refusal or option with respect to the Company purchase or sale of any real property or interest therein. To the Knowledge of the Company, there are no pending Proceedings or Proceedings threatened in writing or otherwise pending to take all or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms portion of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to interest therein by eminent domain or any Person condemnation proceeding (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously curedjurisdictional equivalent thereof) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default sale or notice of default that, individually or disposition in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Leaselieu thereof.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Asensus Surgical, Inc.), Merger Agreement (Asensus Surgical, Inc.)
Real and Personal Property. (a) To the knowledge of the Company, the Company and/or one or more of its Subsidiaries have valid title to, or valid leasehold or sublease interests or other comparable contract rights in or relating to, all of the real property and personal property necessary for the conduct of the business of the Company and its Subsidiaries, taken as a whole, as currently conducted, free and clear of Liens subject to minor imperfections in title that would not materially affect the Surviving Corporation’s use and enjoyment thereof after the Effective Time. Section 3.14(a4.13(a) of the Company Disclosure Letter Schedule as of the date hereof sets forth a correct and complete list of all Company Owned Real Property showing the address owned real property and record titleholder thereofreal property subject to a Lease. The Company or and/or its Subsidiaries has a Company Subsidiary has good valid leasehold interest in the leasehold estates and marketable fee simple title to all Company Owned Real Property, licenses created by the Leases free and clear of any Liens, other than Permitted Liens. With except where such Liens would not interfere in any material respect to each parcel with the conduct of Company Owned Real Property, except as set forth on Section 3.14(a) the business of the Company Disclosure Letterand its Subsidiaries, taken as a whole, as currently conducted on the leased premises. No consent or approval is required to be obtained under any of the Leases, and no material breach, default or right of termination shall arise under any Lease nor does any landlord or other party have the right to increase the amounts payable or charge any sum under any Lease, in each case in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, (i) there are no outstanding optionsany affiliates of any of the foregoing is, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest thereinhas an ownership, (ii) there is no condemnation financial or other proceeding in eminent domaininterest in, pending or threatened, affecting such parcel or the landlord under any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respectsLeases.
(b) Section 3.14(b) All of the Company Disclosure Letter sets forth a trueCompany’s and its Subsidiaries’ material personal property, correct including computers, electronics, leasehold improvements, furnishings, machinery and complete list of all leasesequipment, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force good repair (ordinary wear and effect and constitutes a legaltear excepted), valid and binding obligation of the Company or the applicable Company Subsidiary. To is in good working order and, to the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations materially complies with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Leaseall applicable Laws.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Silicon Storage Technology Inc), Merger Agreement (Silicon Storage Technology Inc)
Real and Personal Property. (a) Except as disclosed in Section 3.14(a4.14(a) of the Company Disclosure Letter sets forth a correct Schedule, each of the Company and complete list of all the Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary Subsidiaries has good and marketable fee simple title to to, or valid leasehold interests in, all Company Owned Real Propertyits material properties and assets, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respectsEncumbrances.
(b) Section 3.14(b4.14(b) of the Company Disclosure Letter Schedule sets forth (i) a true, correct true and complete list of all leases, subleases real property owned by the Company or any Company Subsidiary and other occupancy agreements (together with ii) a true and complete list of all real property leased by the Company or any amendments, modifications and other supplements thereto, Company Subsidiary (collectively, the “"Real Property"). Neither the Company Leases”) pursuant nor any Company Subsidiary is a party to any lease, assignment or similar arrangement under which the Company or any Company Subsidiary leasesis a lessor, subleases assignor or otherwise occupies makes available for use by any real property and third party any portion of the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. .
(c) Each of the Company Leases and the Company Subsidiaries is in full force and effect and constitutes compliance in all material respects with the terms of all Real Property leases to which it is a legalparty.
(d) Since December 31, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company1997, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any received written notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respectproceedings, except to the extent that such modifications are set forth in the documents previously made available to Parentclaims or disputes affecting any Real Property, and neither the Company nor any Company Subsidiary has received written notice in the past three years, or any written notice which is currently unresolved, from any Governmental Entity having jurisdiction over any Real Property of any threatened suspension, modification or cancellation of certificates of occupancy or permits required under applicable law to occupy and use any material Real Property assets as presently occupied or used, the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date basis of such Company Leasewhich has not been cured.
(ce) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company's and/or the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had Subsidiaries' use and would not reasonably be expected to result in a Company Material Adverse Effect. The terms operation of the Company Third Party Leases have Real Property as presently conducted is not been modified in any material respectdependent on a nonconforming use or other waiver from a Governmental Entity, except to the extent that such modifications are set forth in absence of which would materially limit the documents previously made available to Parent, and neither the Company nor any use of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and or the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary operations thereon as presently conducted (unless such waiver has in the conduct of their businessfact been granted).
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Polyvision Corp), Merger Agreement (Polyvision Corp)
Real and Personal Property.
(a) Section 3.14(a4.14(a) of the Company Seller Disclosure Letter sets out a true and complete list of all real property (other than the Mining Rights and water rights) owned by the Seller Subsidiaries (the “Owned Real Property”). The Seller Subsidiaries are the owners of all right, title and interest in such real property, free and clear of any Encumbrances, other than Permitted Encumbrances, except where the failure to have such rights, title and interest would not reasonably be expected to materially impair the value or materially interfere with the use of such real property.
(b) Section 4.14(b) of the Seller Disclosure Letter sets forth a correct true and complete list of all Company Owned real property leased or subleased by any of the Seller Subsidiaries, (the “Leased Real Property showing the address and record titleholder thereofProperty”), other than leased or subleased mining claims. The Company applicable Seller Subsidiaries set out in Section 4.14(b) of the Seller Disclosure Letter hold a valid and enforceable leasehold or a Company Subsidiary has good and marketable fee simple title to all Company Owned subleasehold interest in the applicable Leased Real Property, free and clear of any Liens, other than all Encumbrances except for Permitted LiensEncumbrances in accordance with the terms set out in the applicable lease or sublease. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there All such leases or subleases are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements valid and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect effect, and constitutes a legalnone of the Seller Subsidiaries nor, to the Seller’s knowledge, any other party thereto is in breach of any material covenants, conditions or obligations contained therein. The Seller Subsidiaries have the right under valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006subsisting leases to use and control all such real property, except for any where the failure to have such default or notice of default, individually or in the aggregate, that has not had and right would not reasonably be expected to result materially interfere with the use of such real property. Other than as set out in a Company Material Adverse Effect. The terms Section 4.14(b) of the Company Leases have not been modified Seller Disclosure Letter, the applicable Seller Subsidiaries are in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any exclusive possession of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.Leased Real Property.
(c) Other than as set out in Section 3.14(c4.14(c) of the Company Seller Disclosure Letter sets forth Letter, the Seller Subsidiaries hold valid and enforceable title to, or a truevalid leasehold or subleasehold interest in, correct and complete list of all leasesmaterial buildings, subleases plants, structures, furniture, fixtures, machinery, equipment, vehicles, inventory and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications items of tangible personal property and other supplements thereto, collectively, assets used in the Operations and required to conduct the Operations as currently conducted (the “Company Third Party LeasesPersonal Property”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each All of the Company Third Party Leases Personal Property is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition having regard to its use and repair, age (ordinary wear and tear excepted, and ). All of the Personal Property is in all material respects sufficient to permit located at the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.Material Property other than finished product inventory which has been sent for processing.
Appears in 2 contracts
Real and Personal Property. (ai) Section 3.14(a5.1(r)(i) of the Company Disclosure Letter sets forth a correct and complete list list, as of the date of this Agreement, of all real property owned by the Company and any Subsidiary of the Company (the “Owned Real Property”). Except as would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the Company and its Subsidiaries taken as a whole, the Company and its Subsidiaries have good and marketable title to all of the Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company Owned Real Property, free and clear of any Liens, all Liens other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of Neither the Company Disclosure Letternor its Subsidiaries has granted, to the knowledge of the Companyor is obligated under, (i) there are no outstanding optionsany option, rights right of first offer or rights offer, right of first refusal or similar contractual right to purchase such parcel sell or dispose of the Owned Real Property or any portion thereof or interest therein, .
(ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b5.1(r)(ii) of the Company Disclosure Letter sets forth a true, correct and complete list list, as of the date of this Agreement, of all leases, subleases and other occupancy subleases, licenses, or similar agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which that cover real property used by the Company or any Company Subsidiary leasesof its Subsidiaries (each such lease, subleases license or otherwise occupies any sublease, a “Real Property Lease”) and sets forth the street address of the real property and that is the address subject of such real property any Real Property Lease (the “Company Leased Real Property,” and together with the Owned Real Property, the “Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of defaultExcept as would not, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of materially and adversely affect the Company Leases and its Subsidiaries taken as a whole, (A) the Company and its Subsidiaries have not been modified a valid leasehold interest in the Leased Real Property free and clear of all Liens other than Permitted Liens and each Real Property Lease is valid and in full force and effect, (B) neither the Company nor any material respectof its Subsidiaries, except nor, to the extent that Company’s Knowledge, any other party to a Real Property Lease, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such modifications are set forth in the documents previously made available to ParentReal Property Lease, and neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any Real Property Lease, (C) no Person other than the Company and its Subsidiaries is leases, subleases, licenses or otherwise has a right to use or occupy any of the Real Property, and (D) all improvements located on the Real Property are in negotiations with any landlord sufficiently good condition and repair (ordinary wear and tear excepted) to cancel or terminate any allow the business of the Company and its Subsidiaries to be operated in the ordinary course as currently operated and as presently proposed to be operated. A true, complete and accurate copy of each material Real Property Lease prior has previously been made available to the stated maturity date of such Company LeaseParent.
(ciii) Section 3.14(cAll material tangible assets (including Owned Real Property and Leased Real Property) of the Company Disclosure Letter sets forth a trueand its Subsidiaries are, correct in the aggregate (and complete list with due consideration for reasonable wear and tear and the age of all leaseseach specific tangible asset), subleases in sufficient operating condition and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006repair, except for any such default or notice of default thatas would not, individually or in the aggregate, has not had and would not reasonably be expected to result in have a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Conagra Brands Inc.), Merger Agreement (Pinnacle Foods Inc.)
Real and Personal Property. (a) Company or one or more of its Subsidiaries has good and marketable title to all material personal property assets owned by Company and its Subsidiaries (the “Owned Assets”), free and clear of all Liens, other than Permitted Liens.
(b) Section 3.14(a3.19(b) of the Company Disclosure Letter sets forth a correct and complete list of all real property and interests in real property owned, directly or indirectly, by Company or its Subsidiaries (the “Owned Real Property showing the address and record titleholder thereofProperty”). The Company or a Subsidiary of Company Subsidiary has good and marketable valid fee simple title to all Company the Owned Real Property, Property free and clear of any Liens, liens or encumbrances other than the Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(bc) Section 3.14(b3.19(c) of the Company Disclosure Letter sets forth a true, correct true and complete list of all leasesreal property leased, subleases and other occupancy agreements subleased or otherwise occupied by Company or its Subsidiaries (together with any amendments, modifications and other supplements thereto, collectively, the “Company LeasesLeased Real Property”) pursuant to which the Company or any Company Subsidiary leaseswritten agreements (each, subleases or otherwise occupies any real property and the address of such real property (the a “Company Leased Real PropertyLease”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of defaultExcept as would not, individually or in the aggregate, that has not had and would not reasonably be expected to result in have a Company Material Adverse Effect. The terms , (i) Company or a Subsidiary has a good and valid leasehold interest in the Leased Real Property; (ii) Company or a Subsidiary has the right to use and occupancy of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property for the full term of the lease or any portion thereof to any Person (together with any amendments, modifications and other supplements sublease relating thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases (ii) each such lease or sublease is in full force and effect and constitutes a legal, valid and binding obligation obligation, enforceable in accordance with its terms, of the Company or the applicable Company Subsidiary. To a Subsidiary and, to the knowledge of the Company, the other parties thereto, and Company and its Subsidiaries have not received or delivered notice of any default (with or without notice or lapse of time, or both) with respect to such lease or sublease and (iii) neither the Company nor any Company Subsidiary is in default (which of its Subsidiaries has not been previously cured) assigned its interest under any Company Third Party Leasesuch lease or sublease or sublet any part of the premises covered thereby.
(d) There are no pending or, nor has any notice to the knowledge of default been received Company, threatened condemnation proceedings with respect to the Owned Assets, Owned Real Property or Leased Real Property.
(which has not been previously curede) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default thatExcept as, individually or in the aggregate, has not had and would not reasonably be expected to result in have a Company Material Adverse Effect, all Permits necessary in connection with the construction upon, and present use and operation of, the Owned Real Property and the lawful occupancy thereof in the business of Company and its Subsidiaries have been issued by the appropriate Governmental Entities. The current use of the Owned Real Property is, in all material respects, in accordance with the certificates of occupancy relating thereto and the terms of any such Permits. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, neither Company Third Party Leases have not been modified nor any of its Subsidiaries has received a written notice from any Governmental Entity having jurisdiction over such Owned Real Property that such Owned Real Property is in violation of any material respectLaw relating to such Owned Real Property, including setback requirements and zoning restrictions and ordinances, except to the extent that such modifications are set forth a requirement may be satisfied by virtue of being “grandfathered” or otherwise permitted to continue in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Leaseits current status.
(df) The Company Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, each parcel of Owned Real Property is supplied with utilities and other services necessary for the operation of such Owned Real Property and premises as the Company Leased same is currently operated, all of which utilities and other services are provided via public roads or via permanent, irrevocable appurtenant easements benefiting such Owned Real Property. Each parcel of Owned Real Property constitute all abuts on, and has direct vehicular access to, a public road, or has access to a public road via a permanent, irrevocable appurtenant easement benefiting the parcel of Owned Real Property, in each case, to the real property used by the Company or any Company Subsidiary in extent necessary for the conduct of their business.
(e) The property, plant and equipment the business of the Company and the Company its Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and as it is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practicecurrently being conducted.
Appears in 2 contracts
Sources: Merger Agreement (PSS World Medical Inc), Merger Agreement (McKesson Corp)
Real and Personal Property. (a) Section 3.14(a4.15(a) of the Company Disclosure Letter sets forth Schedule identifies a correct and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The Company real property leased or a Company Subsidiary has good and marketable fee simple title to all Company Owned Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner operated by the Company and its Subsidiaries (including all leasehold, sub-leasehold, ground leasehold, or a other rights to use or occupy any land, buildings, structures, improvements, fixtures, or other interest in real property) (the “Company Subsidiary Leased Real Property”) that is complete and (iv) such parcel is in compliance with all applicable Laws accurate in all material respects.
(b) Neither the Company nor any of its Subsidiaries owns a fee interest in real property (including any land, buildings, structures, improvements, fixtures or easements).
(c) Each of the leases relating to Company Leased Real Property is a valid and subsisting leasehold interest of the Company or any of its Subsidiaries free of sub-tenancies and other occupancy rights and Liens (other than Permitted Liens), and is a valid and binding obligation of the Company or any of its Subsidiaries, enforceable against the Company or any of its Subsidiaries in accordance with its terms.
(d) Other than as set forth in the leases listed in Section 3.14(b4.15(d) of the Company Disclosure Letter sets forth Schedule, neither the Company nor any of its Subsidiaries is a party to or obligated under any option, right of first refusal or other contractual right to sell, dispose of or lease any of the Company Leased Real Property or any portion thereof or interest therein to any Person (other than pursuant to this Agreement). Neither the Company nor any of its Subsidiaries is a party to any agreement or option to purchase any real property or interest therein.
(e) With respect to the Company Leased Real Property:
(i) true, correct and complete list copies of all leasesthe Company Real Property Leases have been delivered to Parent prior to the date hereof and such Company Real Property Leases have not been amended or modified since that date;
(ii) neither the Company, subleases nor, to the Knowledge of the Company, any other party to each Company Real Property Lease is in material breach or default under such Company Real Property Lease, and other occupancy agreements (together no event has occurred or failed to occur or circumstance exists which, with any amendments, modifications and other supplements thereto, collectivelythe delivery of notice, the “passage of time or both, would constitute such a material breach or default, or permit the termination, modification or acceleration of rent under such Company Leases”Real Property Lease;
(iii) pursuant to which none of the Company Leased Real Property has been pledged or assigned by the Company or any of its Subsidiaries or is subject to any Liens (other than pursuant to this Agreement or Permitted Liens);
(iv) the Company Subsidiary leasesdoes not owe, subleases nor will it owe in the future, any brokerage commissions or finder’s fees with respect to any Real Property Lease; and
(v) other than as set forth in Section 4.15(e) of the Company Disclosure Schedule, the Company has not subleased, licensed or otherwise occupies granted any real property and Person the address of such real property (the “right to use or occupy any Company Leased Real Property or any portion thereof.
(f) Except for Company Intellectual Property”). The , which is the subject of Section 4.16 of this Agreement, the Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has its Subsidiaries have good and valid title to all of their respective assets and personal property (tangible and intangible) that they purport to own, including all assets and personal property reflected in the Company Financial Statements (other than to the extent such assets or properties were sold by the Company since the date of the Company Financial Statements in the Ordinary Course of Business) and have valid leasehold estate created under the respective Company Leasesinterests in all leased personal property, in each case free and clear of all Liens of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company kind or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006character, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company LeasePermitted Liens.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Acquisition Agreement (EverBank Financial Corp), Acquisition Agreement (EverBank Financial Corp)
Real and Personal Property. (a) Section 3.14(a3.18(a) of the Company Disclosure Letter Schedules sets forth a correct true and complete list (including street addresses) of all Company real property owned by any of the Group Companies (the “Owned Real Property showing Property” and, together with the address and record titleholder thereofLeased Real Property, the “Real Property”). The Except as set forth in Section 3.18(a) of the Company or a Company Subsidiary has Disclosure Schedule, (i) the Group Companies have good and marketable fee simple title to all Company the Owned Real Property, free and clear of any Liens, other than all Liens (except for Permitted Liens. With respect to each parcel of Company ), (ii) no Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, Property is subject to the knowledge of the Company, (i) there are no any outstanding options, rights of first offer options or rights of first refusal to purchase such parcel any Owned Real Property, or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or of any portion thereof Owned Real Property or interest therein, (iii) all obligations no Owned Real Property is subject to any lease, sublease, concession, license, occupancy agreement, outstanding option or right of first refusal to lease, or other contracts or arrangement granting to any Person (other than the Company Group Companies) the right to occupy any Owned Real Property, or a Company Subsidiary with regard to all applicable covenantsany portion of any Owned Real Property, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) there are no Persons other than the Group Companies in possession of any Owned Real Property. There are currently in effect such parcel is in compliance insurance policies for the Owned Real Property as are customarily maintained with all applicable Laws in all material respectsrespect to similar properties utilized for comparable purposes.
(b) Section 3.14(b3.18(b) of the Company Disclosure Letter Schedules sets forth a true, correct true and complete list (including street addresses) of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and leased by any of the address of such real property Group Companies (the “Company Leased Real Property”)) and all Real Property Leases pursuant to which any Group Company is a tenant or landlord as of the date of this Agreement. The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and Group Companies have valid title leasehold interests to the leasehold estate created under the respective Company LeasesLeased Real Property, in each case free and clear of any Liens, other than all Liens (except for Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company Liens or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements Liens created pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations Indebtedness incurred in the ordinary course of business consistent with past practice). True and complete copies of all such Real Property Leases (including all material amendments, extensions, renewals and guaranties with respect thereto) have been made available to Bannix. Each Real Property Lease is in full force and effect and is a valid, legal and binding obligation of the applicable Group Company party thereto, enforceable in accordance with its terms against such Group Company and, to the Company’s knowledge, each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). There is no official written notice of an event of default by any Group Company or, to the Company’s knowledge, any counterparty under any Real Property Lease, and, to the Company’s knowledge, no event has occurred which (with or without notice or lapse of time or both) would constitute a material breach or default under any Real Property Lease or would permit termination of, or a material modification or acceleration thereof, by any counterparty to any Real Property Lease. The Group Companies’ have not received written notice of any material disputes with respect to any Real Property Lease.
(c) The Company is not in breach or default of any restrictive covenant affecting the Real Property, and there has not occurred any event that with the lapse of time or the giving of notice, or both, would constitute such a default under any such restrictive covenant, in each case except as would not reasonably be expected, individually or in the aggregate, to be material to the Group Companies (taken as a whole). To the Company’s knowledge, there are no pending or threatened condemnation, expropriation or eminent domain proceedings with respect to any Real Property.
(d) Except as would not reasonably be expected to, individually or in the aggregate, be material to the Group Companies (taken as a whole), (i) the use by the Group Companies of the land, buildings, structures and improvements on the Real Property are in conformity with all applicable Laws, including, without limitation, all applicable zoning or planning Laws, and with all registered deeds, restrictions of record or other agreements of record affecting such Real Property, (ii) there exists no conflict or dispute with any Governmental Authority, regulatory authority or other person relating to any Real Property or the activities thereon or the occupancy or use thereof of which the Company has received written notice, and (iii) all requisite certificates of occupancy and other permits or approvals required with respect to the land, buildings, structures and improvements on any of the Owned Real Property and the occupancy and use thereof have been obtained and are currently in effect.
(e) To the knowledge of the Company, no damage or destruction has occurred with respect to any of the Real Property that would be material to the Group Companies (taken as a whole), whether or not covered by an enforceable insurance policy and no Group Company has received notice that the buildings and other structures on the Real Property are not in good and substantial repair.
(f) Each Group Company has good, marketable and indefeasible title to, or a valid leasehold interest in or license or right to use, all of the material assets and properties of the Group Companies reflected in the Financial Statements or thereafter acquired by the Group Companies, except for assets disposed of in the ordinary course of business.
Appears in 2 contracts
Sources: Business Combination Agreement (Bannix Acquisition Corp.), Business Combination Agreement (Bannix Acquisition Corp.)
Real and Personal Property. (a) Section 3.14(aWith respect to each real property owned by the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole (such property collectively, the “Company Owned Real Property”), except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) either the Company or a Subsidiary of the Company Disclosure Letter sets forth a correct has marketable and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable insurable fee simple title to all such Company Owned Real Property, free and clear of any Liens, all Liens other than Company Permitted LiensLiens and conditions, encroachments, easements, rights-of-way, restrictions and other encumbrances that do not materially impair the existing use of the real property subject thereto by the owner (or lessee to the extent a leased property) thereof in the operation of its business (“Permitted Encumbrances”), (ii) there are no leases, subleases, licenses, rights or other agreements affecting any portion of the Company Owned Real Property that would reasonably be expected to materially impair the existing use of the Company Owned Real Property by the Company or any of its Subsidiaries in the operation of its business thereon, and (iii) there are no outstanding options or rights of first refusal in favor of any other party to purchase such Company Owned Real Property or any portion thereof or interest therein that would reasonably be expected to impair the existing use of the Company Owned Real Property by the Company or any of its Subsidiaries in the operation of its business thereon. With As of the date hereof, neither the Company nor any of its Subsidiaries has received notice of any pending, and to the Knowledge of the Company there is no threatened condemnation proceeding with respect to each parcel of any Company Owned Real Property, except as set forth on Section 3.14(a) of proceedings which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company Disclosure Letter, nor any of its Subsidiaries is a party to the knowledge of the Company, (i) there are no outstanding options, rights of first offer any agreement or rights of first refusal option to purchase such parcel or any portion thereof real property or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(bExcept as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) of the Company Disclosure Letter sets forth a trueeach lease, correct and complete list of all leases, subleases sublease and other occupancy agreements agreement (together with any amendments, modifications and other supplements thereto, collectively, the “Company Real Property Leases”) pursuant to under which the Company or any Company Subsidiary leases, subleases of its Subsidiaries uses or otherwise occupies or has the right to use or occupy any real property that is material to the Company and the address of such real property its Subsidiaries, taken as a whole (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to ) at which the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each material operations of the Company Leases or any of its Subsidiaries are conducted as of the date hereof, is valid, binding and in full force and effect and constitutes a legaleffect, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, (ii) neither the Company nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any Person the right to use or occupy a material portion of a Company Subsidiary is in default (which has not been previously cured) under any Leased Real Property that would reasonably be expected to materially impair the existing use of the Company Lease, nor has any notice of default been received (which has not been previously cured) Leased Real Property by the Company or any of its Subsidiaries in the operation of its business thereon, and (iii) no uncured default of a material nature on the part of the Company Subsidiary since January 1or, 2006if applicable, except for any such of its Subsidiaries or, to the Knowledge of the Company, the landlord thereunder, exists under any Company Real Property Lease, and no event has occurred or circumstance exists which, with the giving of notice, the passage of time, or both, would constitute a material breach or default or notice of defaultunder a Company Real Property Lease. Except as would not reasonably be expected to have, individually or in the aggregate, that a Company Material Adverse Effect, the Company and each of its Subsidiaries has a good and valid leasehold interest, subject to the terms of the Company Real Property Leases, in each parcel of Company Leased Real Property, free and clear of all Liens, except for Company Permitted Liens and Permitted Encumbrances, and the Company’s or its Subsidiaries’ possession and quiet enjoyment of the Company Leased Real Property under such Company Real Property Lease has not had and been disturbed. As of the date hereof, neither the Company nor any of its Subsidiaries has received notice of any pending, and, to the Knowledge of the Company, there is no threatened, condemnation proceeding with respect to any Company Leased Real Property, except such proceeding which would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default thathave, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (GenOn Energy, Inc.), Merger Agreement (NRG Energy, Inc.)
Real and Personal Property. (a) Neither the Company nor any of its Subsidiaries own any real property or any interest in real property. Except for the Company Leased Real Property, there is no material real property used or intended to be used by the Company or any of its Subsidiaries in, or otherwise related to, the operation of the Company or any of its Subsidiaries.
(b) Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, materially adverse to the Company and its Subsidiaries, taken as a whole, the Company and its Subsidiaries (as applicable) have good and valid title to, or valid leasehold interests in, all of their respective properties and assets, free and clear of all Liens, except for Permitted Liens.
(c) Section 3.14(a3.16(c) of the Company Disclosure Letter sets forth a list of all material Company Leases. A true, correct and complete list copy of all each material Company Owned Real Property showing Lease has been made available to Parent. Except as has not been, and would not reasonably be expected to be, individually or in the address aggregate, materially adverse to the Company and record titleholder thereof. The its Subsidiaries, taken as a whole, (i) each material Company or Lease is a Company Subsidiary has good valid and marketable fee simple title to all Company Owned Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) binding obligation of the Company Disclosure Letteror any of its Subsidiaries that is a party thereto, as applicable, and to the knowledge Knowledge of the Company, the other parties thereto, enforceable in accordance with its terms (provided that (I) such enforcement may be subject to applicable bankruptcy, insolvency (including all Laws related to fraudulent transfers), reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights and remedies generally and (II) the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any Proceeding therefor may be brought), (ii) none of the Company or any of its Subsidiaries is in breach of or default (or, with the giving of notice or lapse of time or both, would be in default) under the terms of, and none has taken any action resulting in the termination of, acceleration of performance required by, or resulting in a right of termination or acceleration under, any material Company Lease, and (iii) as of the date of this Agreement, to the Knowledge of the Company, no other party to any material Company Lease is in breach of or default (or, with the giving of notice or lapse of time or both, would be in default) under the terms of, and none has taken any action resulting in the termination of, acceleration of performance required by, or resulting in a right of termination or acceleration under, any material Company Lease.
(d) Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, materially adverse to the Company and its Subsidiaries, taken as a whole, (i) the Company and its Subsidiaries (as applicable) have exclusive and peaceful possession of all Company Leased Real Property, (ii) no Person, other than the Company or a Subsidiary of the Company, leases, subleases, licenses, possesses, uses or occupies all or any portion of the Company Leased Real Property, and (iii) there are no outstanding options, rights of first offer or refusals, rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation offer or other proceeding in eminent domainthird-party rights to purchase, pending use, occupy, sell, assign or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations dispose of the Company Leased Real Property or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respectsany interest therein.
(be) Section 3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which Except as has not been previously cured) under any Company Leasebeen, nor has any notice of default been received (which has and would not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of defaultreasonably be expected to be, individually or in the aggregate, that has not had materially adverse to the Company and would not reasonably be expected to result in its Subsidiaries, taken as a Company Material Adverse Effect. The terms whole, as of the Company Leases have not been modified in any material respectdate hereof, except there are no pending or, to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any Knowledge of the Company Subsidiaries is in negotiations with Company, threatened Proceedings to take all or any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) portion of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to interest therein by eminent domain or any Person condemnation proceeding (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously curedjurisdictional equivalent thereof) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default sale or notice of default that, individually or disposition in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Leaselieu thereof.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Exact Sciences Corp), Merger Agreement (Genomic Health Inc)
Real and Personal Property. (a) Except as disclosed in -------------------------- Section 3.14(a4.14(a) of the Company Disclosure Letter sets forth a correct Schedule, each of the Company and complete list of all the Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary Subsidiaries has good and marketable fee simple title to to, or valid leasehold interests in, all Company Owned Real Propertyits material properties and assets, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respectsEncumbrances.
(b) Section 3.14(b4.14(b) of the Company Disclosure Letter Schedule sets forth (i) a true, correct true and complete list of all leases, subleases real property owned by the Company or any Company Subsidiary and other occupancy agreements (together with ii) a true and complete list of all real property leased by the Company or any amendments, modifications and other supplements thereto, Company Subsidiary (collectively, the “"Real Property"). ------------- Neither the Company Leases”) pursuant nor any Company Subsidiary is a party to any lease, assignment or similar arrangement under which the Company or any Company Subsidiary leasesis a lessor, subleases assignor or otherwise occupies makes available for use by any real property and third party any portion of the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. .
(c) Each of the Company Leases and the Company Subsidiaries is in full force and effect and constitutes compliance in all material respects with the terms of all Real Property leases to which it is a legalparty.
(d) Since December 31, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company1997, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any received written notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respectproceedings, except to the extent that such modifications are set forth in the documents previously made available to Parentclaims or disputes affecting any Real Property, and neither the Company nor any Company Subsidiary has received written notice in the past three years, or any written notice which is currently unresolved, from any Governmental Entity having jurisdiction over any Real Property of any threatened suspension, modification or cancellation of certificates of occupancy or permits required under applicable law to occupy and use any material Real Property assets as presently occupied or used, the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date basis of such Company Leasewhich has not been cured.
(ce) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company's and/or the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had Subsidiaries' use and would not reasonably be expected to result in a Company Material Adverse Effect. The terms operation of the Company Third Party Leases have Real Property as presently conducted is not been modified in any material respectdependent on a nonconforming use or other waiver from a Governmental Entity, except to the extent that such modifications are set forth in absence of which would materially limit the documents previously made available to Parent, and neither the Company nor any use of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and or the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary operations thereon as presently conducted (unless such waiver has in the conduct of their businessfact been granted).
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Steelcase Inc), Merger Agreement (Steelcase Inc)
Real and Personal Property. (a) Section 3.14(aReal Property. Schedule 4.19(a) of the Company Disclosure Letter sets forth a correct and complete list of all real properties that are owned by the Company or any of the Company Subsidiaries (the "Company Owned Real Property showing the address and record titleholder thereofProperty"). The Company or a and each Company Subsidiary has good and marketable fee simple title to, or valid leasehold interests in, all real properties owned, used or occupied by them except for such as are no longer used or useful in the conduct of its businesses or as have been disposed of in the ordinary and usual course of business and except for defects in title, easements, restrictive covenants and similar encumbrances or impediments that, in the aggregate, do not and will not materially interfere with its ability to all Company Owned Real Property, free and clear of any Liens, other than Permitted Liensconduct its business as currently conducted. With respect to each parcel of Company Owned Real Property, except Except as set forth on in Section 3.14(a4.19(a) of the Company Disclosure Letter, to all such properties, other than properties in which the knowledge Company or the Company Subsidiaries has leasehold interests, are free and clear of the Company, all Liens and except for (i) there are no outstanding optionsstatutory Liens of carriers, rights warehousemen, mechanics, repairmen, workmen and materialmen incurred in the ordinary and usual course of first offer business for amounts not yet overdue or rights of first refusal to purchase such parcel or any portion thereof or interest thereinbeing contested in good faith, (ii) there Liens for Taxes not yet due and payable or being contested in good faith in appropriate proceedings during which collection or enforcement is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, stayed and (iii) all obligations Liens that, in the aggregate, do not and will not materially interfere with the ability of the Company and the Company Subsidiaries to conduct business as currently conducted (any or a all of such liens under clauses (i), (ii) or (iii), "Permitted Liens"). Neither the Company nor any Company Subsidiary with regard has an option to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner purchase any real property. All of the real property leased by the Company or a and each of the Company Subsidiary and (iv) such parcel Subsidiaries is identified in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b4.19(a) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, herein referred to as the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “"Company Leased Real Property”").
(i) Status of Leases. The All leases of the Company has heretofore made available to Parent Leased Real Property are identified in Section 4.19(a)(i) of the Company Disclosure Letter, and true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title thereof have been delivered to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted LiensParent. Each of said leases has been duly authorized and executed by the Company Leases or the Company Subsidiary party thereto, is in full force and effect and constitutes a the legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary party thereto, and is enforceable in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respectaccordance with its respective terms, except to the extent that such modifications are set forth in the documents previously made available enforceability may be limited by applicable bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors' rights generally and subject to Parent, and neither the Company nor any general principles of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”)equity. The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of or the Company Third Party Leases is in full force and effect and constitutes a legalSubsidiary party thereto has not received notice of any default under any of said leases, valid and binding obligation of nor, to the Company or the applicable Company Subsidiary. To the knowledge Knowledge of the Company, neither has any event occurred which, with notice or the Company nor any Company Subsidiary passage of time, or both, would give rise to such a default. To the Knowledge of the Company, the other party to each of said leases is not in default (which has not been previously cured) under any Company Third Party Leaseof said leases and there is no event which, nor has any with notice or the passage of default been received (which has not been previously cured) by the Company time, or any Company Subsidiary since January 1both, 2006, except for any would give rise to such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Leasedefault.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Foilmark Inc), Merger Agreement (Illinois Tool Works Inc)
Real and Personal Property. (a) Section 3.14(a) of the Company Disclosure Letter sets forth a correct and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company Owned Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b22(a) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements real property (together with any amendments, modifications and other supplements thereto, collectively, including their street addresses) owned by the “Company Leases”) pursuant to or a Subsidiary or which the Company or any Company a Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property hold an ownership interest (the “Company Leased Owned Real Property”). The Except as set forth in Section 22(a) of the Company has heretofore made available Disclosure Letter, the Company and its Subsidiaries have good, valid and defensible title to Parent true and complete copies of all Company Leases. The Owned Real Property owned by the Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leasesits Subsidiaries, in each case free and clear of any all Liens, other than except Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(cb) Section 3.14(c22(b) of the Company Disclosure Letter sets forth a true, correct and complete list of any and all leases, subleases and other occupancy agreements pursuant to premises which the Company or any Company Subsidiary leases or subleasesoccupies as a tenant (the “Leased Real Property”, as applicable, any Company and together with the Owned Real Property or Property, the “Real Property”). Section (22)(21) of the Company 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 premises leased; (ii) the date of the lease; (iii) the original and current parties to the lease; (iv) the area of the space subject to each lease; (v) the remaining term and any portion thereof unexpired options to extend or renew (as applicable); (vi) the rent payable thereunder; (vii) the amount of any Person prepaid rent (together with if any), and (viii) the identification of any amendments, modifications and other supplements thereto, collectively, guarantee or security deposits given in respect of the “Company Third Party Leases”). lease to the extent available.
(c) The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legalits Subsidiaries have good, valid and binding obligation of the Company marketable title to, and/or a valid and enforceable interest and tenure (whether leasehold, licenced or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously curedotherwise) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregateLeased Real Property, has not had including in and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Leasefixtures thereto.
(d) The Company Owned There are no leases, subleases, licenses, concessions or other Contracts, written or oral, granting to any Person the right of use or occupancy of any portion of the Real Property and the Company Leased Real Property constitute all except in favor of the real property used by the Company or any its Subsidiaries. There are no Persons in possession of such Real Property except the Company Subsidiary in the conduct or one of their businessits Subsidiaries.
(e) The propertyCompany and/or its Subsidiaries, plant as the case may be, enjoys exclusive, peaceful, and equipment quiet possession of the Leased Real Property in accordance with the terms of the lease thereof, is not in default or breach under such lease, and no event has occurred which, after the giving of notice, with lapse of time, or both, would constitute a default or breach by the Company and/or its Subsidiaries. The Company and/or its Subsidiaries, as the case may be, has timely paid all rent and other sums due and payable under the lease(s) for the Leased Real Property.
(f) 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, and the Company and its Subsidiaries own, lease or licence all personal property as is necessary for them to conduct their business as presently conducted (collectively, the “Personal Property”), and the Company and its Subsidiaries have good and valid title to, or a valid and enforceable interest (whether a leasehold interest or otherwise) in, all of such Personal Property.
(g) There are no material suits, actions or proceedings pending or, to the Company’s Knowledge, threatened against or affecting any of the Real Property or Personal Property before any Governmental Entity.
(h) There are no pending, or to the Company’s Knowledge, threatened or contemplated condemnation, eminent domain or expropriation proceedings with respect to any of the Real Property, or any part thereof, and none of the Company or any of its Subsidiaries has been maintained received any notice, oral or written, of the intention of any Governmental Entity or other Person to take or use any Real Property, or any part thereof.
(i) 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 Real Property (or any portion thereof or interest therein) or any of the material assets owned or leased or otherwise held by the Company or its Subsidiaries, or any part thereof or interest therein, except in reasonable operating condition and repair, ordinary wear and tear exceptedconnection with the Arrangement.
(j) The Company has not received any written notice of, and is to the Company’s Knowledge, there are no disputes regarding boundaries, easements, covenants or other matters relating to any of the Real Property.
(k) The current uses of the Real Property are lawful and valid under all applicable Law (other than Cannabis Laws) in all material respects sufficient to permit the Company and the Company Subsidiaries has received all requisite permissions authorizing such uses. No Real Property is subject to conduct their operations any building or use restriction that would restrict or prevent the business of the Company as currently conducted in the ordinary course Ordinary Course. Each Real Property is zoned for its current use, and such current use is in all respects a conforming use. No Governmental Entity having jurisdiction over the Real Property has issued, or to the Company’s knowledge, threatened to issue any notice or order, injunction, judgment, decree, ruling, writ or arbitration award that adversely affects the use or operation of business consistent with past practiceany Real Property.
(l) To the Company’s Knowledge, all required consents and approvals (including, without limitation, certificates of occupancy) have been obtained in respect of the development of the Real Property and any alteration, extension or other improvement thereof.
Appears in 1 contract
Sources: Arrangement Agreement (Harvest Health & Recreation Inc.)
Real and Personal Property. (a) As of the date hereof, the real property described in Section 3.14(a3.14(a)(i) of the Company Disclosure Letter sets forth a correct Schedule constitutes all of the real property owned in fee simple by the Company and complete list its Subsidiaries (other than any of all Company the Tower Interests or Access Rights) (the “Owned Real Property showing Property”). Except as set forth in Section 3.14(a)(ii) of the address and record titleholder thereof. The Company Disclosure Schedule, the Company or a Company Subsidiary has one of its Subsidiaries (i) have good and marketable valid indefeasible fee simple title to all Company of the Owned Real Property, free and clear of any Liens, all Liens other than Permitted Liens. With respect , (ii) are in sole and exclusive possession of the Owned Real Property and there are no leases, licenses, occupancy agreements or any other similar arrangements pursuant to each parcel of Company which any third party is granted the right to use and occupy the Owned Real Property, except as set forth on other than pursuant to Permitted Liens, (iii) have sufficient right of ingress and egress to the Owned Real Property in all material respects and enjoy peaceful and quiet possession thereof in all material respects and (iv) there are no outstanding options or rights of first offer or refusal to purchase the Owned Real Property.
(b) As of the date hereof, the real property described in Section 3.14(a3.14(b)(i) of the Company Disclosure Letter, to the knowledge Schedule constitutes all of the Company, (i) there are no outstanding options, rights of first offer real property leased or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner subleased by the Company and its Subsidiaries as tenant or subtenant from any third party (other than any of the Tower Interests, Access Rights, any lease of property pursuant to a Company Subsidiary co-location and/or interconnection agreement, indefeasible right of use (IRU) agreement, license or occupancy agreement, easements, or servitudes) (such property, the “Leased Real Property”, and (iv) such parcel is the leases, subleases, licenses and occupancy agreements with respect thereto, the “Leases”). Except as set forth in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b3.14(b)(ii) of the Company Disclosure Letter sets forth a trueSchedule, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, respect to the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property Leased Real Property and the address of such real property Leases: (the “Company Leased Real Property”). The Company has heretofore made available to Parent true i) each Lease is valid and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and as would not reasonably be expected to result in a Company Material Adverse Effect. The terms of be material to the Company Leases have not been modified in any material respectand its Subsidiaries, except taken as a whole), subject to the extent that Enforceability Exception, (ii) neither the Company nor any of its Subsidiaries, nor to the Company’s Knowledge any other party to a Lease, has materially violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a material default under the provisions of such modifications are set forth in the documents previously made available to ParentLease, and neither the Company nor any of its Subsidiaries has received notice (whether written or, to the Company’s Knowledge, oral) that it has materially breached, violated or defaulted under any Lease, (iii) the possession and quiet enjoyment of the real property demised by the Leases by the Company or applicable Subsidiary party to such Lease has not been materially disturbed and there are no material disputes with respect to such Lease, (iv) neither the Company nor any of its Subsidiaries is has collaterally assigned or granted any other security interest in negotiations with such Lease, other than Permitted Liens and (v) neither the Company nor any landlord of its Subsidiaries has subleased, licensed or otherwise granted any third party the right to cancel use or terminate occupy any Company Lease prior to the stated maturity date of such Company LeaseLeased Real Property.
(c) Section 3.14(cAs of the date hereof and with respect to all material easements, access rights, rights of way, railroad crossing agreements, any lease of property pursuant to a co-location and/or interconnection agreement, indefeasible right of use (IRU) agreement, license or occupancy agreement, fiber optic licenses and related access agreements, and other similar material real property rights necessary for the operation of the business of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and its Subsidiaries as it is presently conducted (other occupancy agreements pursuant to which than the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person Tower Interests) (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party LeasesAccess Rights” and the agreement granting such Access Rights, “Access Agreements”). The Company has heretofore made available to Parent true ): (i) each Access Agreement is legal, valid, binding, enforceable and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legalin all material respects, valid and binding obligation of subject to the Company or the applicable Company Subsidiary. To the knowledge of Enforceability Exceptions, (ii) there are no material disputes with respect to such Access Rights, (iii) there are no Liens on the Company’s or its Subsidiaries’ interests created by such Access Rights, other than Permitted Liens, and (iv) neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under subleased, licensed or otherwise granted any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by third party the Company right to use or occupy such Access Rights or any Company Subsidiary since January 1material portion thereof, 2006in each case other than in the Ordinary Course.
(d) All material Improvements have been maintained in accordance with prudent industry practices and applicable Laws in all material respects. To the Knowledge of the Company, there are no condemnation or eminent domain proceedings pending or threatened with respect to the Company’s Real Property, except for any such default or notice of default thatas would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(e) As of the date hereof, the interests described in Section 3.14(e)(i) of the Company Disclosure Schedule constitute all of the Towers used in connection with the operation of the business of the Company and its Subsidiaries. Except as set forth in Section 3.14(e)(ii) of the Company Disclosure Schedule, the Company or one of its Subsidiaries: (i) has good and valid title or enforceable leasehold interest or license in, or in the case of easements and IRUs, valid rights to use and/or occupy, in all of the Tower Interests, free and clear of all Liens other than Permitted Liens, subject to the Enforceability Exception, (ii) is in sole and exclusive possession of the Towers, other than pursuant to Permitted Liens, (iii) has sufficient right of ingress and egress to the Towers in all material respects and enjoys peaceful and quiet possession thereof, (iv) there are no outstanding options or rights of first offer or refusal to purchase the Tower Interests owned by the Company or any of its Subsidiaries, and (v) the possession and quiet use and enjoyment of the Towers has not had been disturbed in any material respect and there are no material disputes with respect to any Tower Interests. To the Knowledge of the Company, all material Tower Interests owned by the Company or any Subsidiary and which are in operation have been maintained reasonably consistent with past practice in all material respects. To the Knowledge of the Company, all Towers owned by the Company or any Subsidiary and currently in operation are in compliance with any applicable rules and regulations of the Federal Aviation Administration in all material respects. To the Knowledge of the Company, each Tower owned by the Company or any Subsidiary and currently in operation was constructed and is operated and maintained in accordance with relevant engineering and industry standards, except as would not not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. The terms To the Knowledge of the Company, each Tower owned by the Company or any Subsidiary and currently in operation is structurally sound and in good working order to the extent necessary for its current use, except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. During the period since January 1, 2018, and, to the Knowledge of the Company Third Party Leases have not been modified in any material respectfor the periods prior to its ownership, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company its Subsidiaries is in negotiations with has received any tenant or subtenant to cancel or terminate written notice alleging that any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used Tower owned by the Company or any Company Subsidiary failed any inspections, is in violation of any applicable Laws, or is structurally unsound, in each case, except as would not, individually or in the conduct of their businessaggregate, reasonably be expected to result in a Material Adverse Effect.
(ef) The propertyCompany and its Subsidiaries have good title to, plant or valid leasehold interests in, all personal property and equipment of assets reflected on the Company and Balance Sheet or acquired after the Company Subsidiaries has Balance Sheet Date, except as have been maintained disposed of since the Company Balance Sheet Date in reasonable operating the Ordinary Course, free and clear of all Liens other than Permitted Liens. All such property is in reasonably good working order and condition and repair, ordinary in all material respects (normal wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice).
Appears in 1 contract
Sources: Merger Agreement (Cable One, Inc.)
Real and Personal Property. (a) None of the Company nor any Company Subsidiary owns any real property in fee simple. Section 3.14(a) of the Company Disclosure Letter Schedule sets forth a correct true and complete list of all Company Owned Real Property showing real property leased to the address and record titleholder thereof. The Company or a any Company Subsidiary has good and marketable fee simple title to all Company Owned (the “Leased Real Property”), free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation other real property owned, leased or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner occupied by the Company or a any of the Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respectsSubsidiaries.
(b) A complete and accurate copy of each lease under which the Company or any Company Subsidiary is lessee of any of the Leased Real Property, including amendments thereto, has been made available in the Data Room to Parent and all such leases are listed on Section 3.14(b) of the Company Disclosure Letter sets forth a trueSchedule. To the Knowledge of the Company, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any applicable Company Subsidiary leases, subleases or otherwise occupies any real property possesses and quietly enjoys all of the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available .
(c) With respect to Parent true and complete copies of all Company Leases. The the Leased Real Property, the Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leasesan adequate leasehold, license or similar interest in each case of the Leased Real Properties free and clear of any Liensall Encumbrances, other than except Permitted Liens. Each Encumbrances or as listed on Section 3.14 (c) of the Company Leases is Disclosure Schedule.
(d) Except as disclosed in full force and effect and constitutes a legal, valid and binding obligation Section 3.14(d) of the Company Disclosure Schedule, the Company is not a party to any lease, assignment or similar arrangement under which the applicable Company is a lessor, assignor or otherwise makes available for use by any third party any portion of its owned real property or Leased Real Property.
(e) Section 3.14(e) of the Company Disclosure Schedule sets forth a complete list as of the date specified thereon of (i) all equipment, machinery, motor vehicles, plants and other tangible Personal property owned by the Company or any Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default and (which has not been previously curedii) under any Company Leaseall equipment, nor has any notice of default been received (which has not been previously cured) machinery, motor vehicles, plants and other tangible personal property leased by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice involving the payment of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leasesmore than $100,000 per year. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition good and repairmarketable title, ordinary wear free and tear exceptedclear of all Encumbrances (except (i) liens for current Taxes not yet due, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations (ii) Encumbrances incurred in the ordinary course of business consistent with past practicepractice which individually and in the aggregate are not material in nature or amount and do not impair the use of such Personal property in the operation of the Company’s business, and (iii) such Encumbrances as required pursuant to the Comerica Loan (such Encumbrances in clauses (i) through (iii) being referred to as “Permitted Encumbrances”)), to the personal property reflected on the Company’s Financial Statements for the fiscal year ended December 31, 2003 as being owned by the Company, other than properties and assets that have been sold or otherwise disposed of either (i) in the ordinary course of business since December 31, 2003 and prior to the date hereof or (ii) after the date hereof consistent with Section 5.1. The Company and the Company Subsidiaries own, or hold under valid leases or licenses, all personal property, plants, machinery and equipment reasonably necessary for the conduct of the business of the Company and the Company Subsidiaries as it is being conducted on the date hereof. The Company’s and the Company Subsidiaries’ equipment has been reasonably maintained and is in good condition and repair, reasonable wear and tear excepted.
Appears in 1 contract
Real and Personal Property. (a) Section 3.14(a3.16(a) of the Company Disclosure Letter Schedule sets forth a correct and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The description of all real property owned by the Company or a Company Subsidiary has good any of its Subsidiaries (together with all buildings, structures, improvements and marketable fee simple title to fixtures located thereon, and all Company easements and other rights and interests appurtenant thereto, “Owned Real Property, free and clear of any Liens, other than Permitted Liens”). With respect to each parcel of Company the Owned Real Property, except as set forth on Section 3.14(a3.16(a) of the Company Disclosure Letter, to the knowledge of the CompanySchedule, (i) the Company or one or more of its Subsidiaries (as the case may be) has good, valid and marketable fee simple title to such Owned Real Property, which are free and clear of Liens, except for Permitted Liens, (ii) there are no outstanding options, rights of first offer or rights of first refusal or other rights to purchase such parcel Owned Real Property or any portion thereof or interest interests therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, and (iii) all obligations of neither the Company nor any of its Subsidiaries is a party to any agreement or a Company Subsidiary with regard option to all applicable covenantspurchase, easements and restrictions affecting such parcel have been and are being performed acquire, dispose or sell any interest in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respectsreal property.
(b) Section 3.14(b3.16(b) of the Company Disclosure Letter Schedule sets forth a true, correct true and complete list as of May 6, 2021 of all leases, leases and subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leasesof its Subsidiaries is a party as of May 6, subleases or otherwise occupies any 2021 with respect to real property leased or subleased by the Company or any of its Subsidiaries requiring aggregate annual payments, to or on behalf of the landlord under such lease or sublease, as applicable, of more than $2 million (“Real Property Leases” and together with the address of such real property (the Owned Real Property, “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or Except as would not constitute a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company LeasesMaterial Adverse Effect, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge one of the Companyits Subsidiaries has valid and enforceable leasehold estates in or other rights to use all real property leased, neither the Company nor any Company Subsidiary is in default subleased, licensed or otherwise occupied (which has not been previously cured) under any Company Leasewhether as tenant, nor has any notice of default been received (which has not been previously curedsubtenant or pursuant to other occupancy arrangements) by the Company or any Company Subsidiary since January 1of its Subsidiaries, 2006free and clear of all Liens, except for any such default or notice of default, individually or in the aggregate, that has not had and Permitted Liens.
(c) Except as would not reasonably be expected to result in constitute a Company Material Adverse Effect. The terms , (i) the Company and its Subsidiaries have good and valid title to, or valid and enforceable rights to use under existing franchises, easements or licenses of, or valid and enforceable leasehold interests in, all of their material tangible personal properties and assets necessary to carry on their businesses as currently conducted, free and clear of all Liens, except for Permitted Liens, (ii) there are no condemnation or rezoning proceedings pending or, to the Knowledge of the Company Leases have not been modified in any material respectCompany, except threatened with respect to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date Real Property and (iii) none of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases of its Subsidiaries has received or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any delivered written notice of default been received (which has not been previously cured) by the Company any violation of any easement or reciprocal easement, covenants or restrictions of record affecting any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party LeaseReal Property.
(d) The Company Owned Except as set forth on Section 3.16(d) of the Seller Disclosure Schedule, as of May 6, 2021, there has been no base rent deferred under any Real Property and the Company Leased Real Property constitute all of the real property used by the Company Lease due to COVID-19 that is currently unpaid or any Company Subsidiary in the conduct of their businessoutstanding.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Real and Personal Property. (a) Section 3.14(a3.17(a) of the Company Disclosure Letter sets forth a correct complete and complete accurate list of all Company Owned Real Property showing real property owned by the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all any of its Subsidiaries (collectively, the “Company Owned Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects”).
(b) Section 3.14(b3.17(b) of the Company Disclosure Letter sets forth a true, correct complete and complete accurate list of all leaseseach lease, subleases sublease, license or similar use and other occupancy agreements Contract (together with any amendmentseach, modifications and other supplements thereto, collectively, the a “Company LeasesLease”) pursuant to which the Company or any Company Subsidiary of its Subsidiaries leases, subleases or otherwise uses or occupies any real property and the address of such real property from any other Person (whether as a tenant, subtenant or pursuant to other occupancy arrangements) (collectively, the “Company Leased Real Property” and together with the Company Owned Real Property, the “Company Real Property”). .
(c) The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has its Subsidiaries have good and marketable title to, or valid title to the leasehold estate created under the interests in, all of their respective Company Leasesproperties and assets, in each case free and clear of any all Liens, other than except for Permitted Liens. Each The Company and each of its Subsidiaries enjoy peaceful and undisturbed possession under all of the Leases for any Company Leases Leased Real Property in all material respects.
(d) Each Lease for any Company Leased Real Property is in full force and effect and constitutes a legal, valid and binding obligation of the Company or any of its Subsidiaries that is a party thereto, as applicable, and to the applicable Company Subsidiary. To the knowledge Knowledge of the Company, neither the Company nor any Company Subsidiary is in default other parties thereto.
(which has not been previously curede) under any Company Lease, nor has any notice None of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1of its Subsidiaries has received any communication from, 2006or given any communication to, except any other party to a Lease for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to lender, alleging that the Company, any Person (together with any amendmentsof its Subsidiaries or such other party, modifications and other supplements theretoas the case may be, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legaldefault under such Lease.
(f) No Person, valid and binding obligation of other than the Company or the applicable Company Subsidiary. To the knowledge a Subsidiary of the Company, neither possesses, uses or occupies all or any portion of any Company Real Property. There are no outstanding options or rights of first refusal to purchase the Company Owned Real Property. Neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in is a party to any material respectagreement, except right of first offer, right of first refusal or option with respect to the extent that such modifications purchase or sale of any real property or interest therein. There are set forth in no pending or, to the documents previously made available Knowledge of the Company, threatened Proceedings to Parent, and neither the Company nor take all or any portion of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in the conduct of their businesslieu thereof.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Real and Personal Property. (a) Section 3.14(aSchedule 4.7(a) of lists all real estate owned by each Acquired Company (the Company Disclosure Letter sets forth a correct and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company “Owned Real Property, free ”) and clear of any Liens, other than Permitted Liens. With respect to each parcel of the Acquired Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase that owns such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respectsproperty.
(b) Section 3.14(bSchedule 4.7(b) of lists all real estate leased by any Acquired Company as a lessee, sub-lessee, or assignee (the Company Disclosure Letter sets forth a true“Leased Real Property” and, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectivelythe Owned Real Property, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”), including a description of the premises leased and the Acquired Company that leases the same. All Leased Real Property is leased pursuant to valid written leases listed in Schedule 4.13(a). Such leases contain the entire agreement between the landlord of each of the leased premises and the Acquired Company, and there is no other Contract between the landlord and any Acquired Company affecting such Leased Real Property.
(c) The Company has heretofore made available to Parent true Owned Real Property and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under Acquired Companies’ interests in the Leased Real Property are owned by the respective Company Leases, in each case Acquired Companies free and clear of any Liensall Encumbrances, other than Permitted LiensEncumbrances and as set forth in Schedule 4.7(c). Each Certificates of the Company Leases is occupancy are in full force and effect for each location of Real Property, and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) uses thereof being made by the Company Acquired Companies do not violate any applicable zoning, subdivision, land use, or other Legal Requirement. No Third Party has a right to acquire any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or interest in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company in the Acquired Companies’ interests in the Leased Real Property.
(d) With respect to each Leased Real Property, none of the Acquired Companies has subleased, licensed or otherwise granted anyone a right to use or occupy such Leased Real Property or any material portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leasesthereof. Each Acquired Company enjoys peaceful and undisturbed possession of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their businessProperty.
(e) The propertyAcquired Companies own all tangible personal property reflected as owned in the Interim Balance Sheet, plant free and equipment clear of all Encumbrances, other than Permitted Encumbrances. All the Company tangible personal property purchased or otherwise acquired by the Acquired Companies since the Balance Sheet Date (other than inventory acquired and sold since the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations Balance Sheet Date in the ordinary course of business consistent with past practicebusiness) is owned by the Acquired Companies free and clear of all Encumbrances, other than Permitted Encumbrances.
Appears in 1 contract
Sources: Merger Agreement (National Investment Managers Inc.)
Real and Personal Property. (a) Section 3.14(a) of the Company Disclosure Letter sets forth a correct and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company Owned Real Property, free and clear of . No Parent Group Company owns any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respectsreal property.
(b) Section 3.14(bLeased Real Property.
(i) of the Company Disclosure Letter Schedule 5.17(b)(i) sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, each Parent Real Property Lease in effect as of the “Company Leases”) Original Agreement Date pursuant to which the Company or any Company Subsidiary leasescurrent annual rental payments exceed $1,500,000 (each, subleases or otherwise occupies any a “Material Parent Real Property Lease”; the real property and leased by the address of such real property (Parent Group Companies pursuant to the Material Parent Real Property Leases is hereinafter referred to as the “Company Parent Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default .
(which has not been previously curedii) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and Except as would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any be material respect, except to the extent that Parent Group Companies taken as a whole, each Material Parent Real Property Lease is valid and binding on the Parent Group Company party thereto, enforceable in accordance with its terms (assuming the due authorization and execution of such modifications are set forth in Material Parent Real Property Lease by the documents previously made available to Parentother party(ies) thereto, and neither subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the Company nor any enforcement of the Company Subsidiaries is in negotiations with any landlord creditors’ rights and subject to cancel or terminate any Company Lease prior to the stated maturity date general principles of such Company Leaseequity).
(ciii) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, Except as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result be material to the Parent Group Companies taken as a whole, neither any Parent Group Company, nor, to Parent’s knowledge, any third party to a Material Parent Real Property Lease is in a Company default under or in breach of any Material Adverse Effect. The terms of the Company Third Party Leases have not been modified Parent Real Property Lease in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(div) The No Parent Group Company Owned has entered into any material sublease granting to any Person other than a Parent Group Company the right to use or occupy any material portion of the Parent Leased Real Property and Property.
(v) No Parent Group Company has granted to any Person other than a Parent Group Company any option or right of first refusal to purchase or acquire any material portion of the Company Parent Leased Real Property.
(vi) Except as would not reasonably be expected to be material to the Parent Group Companies taken as a whole, the use of the Parent Leased Real Property constitute all of does not violate any applicable Law, covenant, condition, restriction, easement, license, permit or agreement in effect with respect to such Parent Leased Real Property. There is no condemnation or eminent domain proceeding affecting the real property used by the Company or any Company Subsidiary in the conduct of their businessParent Leased Real Property.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Sources: Agreement and Plan of Amalgamation
Real and Personal Property. (a) The Company and its Subsidiaries do not own any real property.
(b) Section 3.14(a3.18(b) of the Company Disclosure Letter sets forth a correct complete and complete accurate list of all Company Owned Real Property showing the address each lease, sublease, license or similar use and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company Owned Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, occupancy Contract (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with including any amendments, extensions and modifications and other supplements thereto, collectivelyeach, the a “Company LeasesLease”) pursuant to which the Company or any Company Subsidiary of its Subsidiaries leases, subleases or otherwise uses or occupies any real property and the address of such real property from any other Person (whether as a tenant, subtenant or pursuant to other occupancy arrangements) (collectively, the “Company Leased Real Property”). The Company has heretofore made available to Parent true a true, correct and complete copies copy of all Company Leases. each such Lease to date.
(c) The Company or a Company Subsidiary has good and its Subsidiaries have valid title to leasehold interests under each of the leasehold estate created under the respective Company Leases, in each case free and clear of any all Liens, other than except for Permitted Liens. Each Liens and the Company and its Subsidiaries enjoy peaceful and undisturbed possession under all of the Leases for any Company Leases Leased Real Property.
(d) Each Lease for any Company Leased Real Property is in full force and effect and constitutes is a legal, valid and binding obligation of the Company or any of its Subsidiaries that is a party thereto, as applicable, and to the applicable Company Subsidiary. To the knowledge Knowledge of the Company, neither the other parties thereto.
(e) Except as have been cured or otherwise resolved, none of the Company nor or any of its Subsidiaries has received any communication from, or given any communication to, any other party to a Lease for any Company Subsidiary Leased Real Property or any lender, alleging that the Company, any of its Subsidiaries or such other party, as the case may be, is in default (which has not been previously cured) under any Company such Lease, nor and to the Knowledge of the Company, no other counterparty is in default under such Lease. No event has any occurred and no condition exists, which with the giving of notice or the passage of time, or both, will constitute a default been received (which has not been previously cured) under a Lease by the Company or any Company Subsidiary since January 1of its Subsidiaries, 2006or, except for to the Knowledge of the Company, any counterparty under such default or notice of defaultLease, that would, individually or in the aggregate, that has not had materially impair or be reasonably likely to materially impair the continued use and would not reasonably be expected to result in a Company Material Adverse Effect. The terms operations of the Company Leases have not been modified in any material respect, except Leased Real Property to the extent that such modifications are set forth which they relate in the documents previously made available to Parentconduct of the business of the Company and its Subsidiaries as presently conducted.
(f) No Person, and neither other than the Company or a Subsidiary of the Company, possesses, uses or occupies all or any portion of any Company Leased Real Property. Neither the Company nor any Subsidiary of the Company Subsidiaries is in negotiations a party to any agreement, right of first offer, right of first refusal or option with any landlord to cancel or terminate any Company Lease prior respect to the stated maturity date purchase or sale of such Company Lease.
(c) Section 3.14(c) any real property or interest therein. There are no pending or, to the Knowledge of the Company Disclosure Letter sets forth a trueCompany, correct and complete list of threatened Proceedings to take all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or portion of the Company Leased Real Property or any portion thereof to interest therein by eminent domain or any Person condemnation proceeding (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously curedjurisdictional equivalent thereof) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default sale or notice of default that, individually or disposition in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Leaselieu thereof.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Real and Personal Property. (a) Section 3.14(a) of the Company Disclosure Letter sets forth a correct and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The Company or a Subsidiary of the Company Subsidiary (a) has good and marketable fee simple title to all Company Owned Real Propertythe real property, free and clear of any Liensif any, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of reflected in the latest audited balance sheet included in the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are Financial Statements as being performed in all material respects in a proper and timely manner owned by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or acquired after the applicable Company Subsidiary. To date thereof (except properties sold or otherwise disposed of since the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice) (the “Company Owned Properties”), free and clear of all Liens, except (i) Liens for current Taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) Liens for real property Taxes not yet past due, (iii) easements, rights of way, and other similar encumbrances, (iii) mechanics’, workmen’s, repairmen’s, warehousemen’s and carrier’s Liens and any statutory Liens arising in the ordinary course of business of the Company consistent with past practice, or (iv) such imperfections or irregularities of title or Liens as do not materially affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties (clauses (i) through (iv), collectively, “Permitted Liens”), and (b) is the lessee of all leasehold estates reflected in the latest audited balance sheet included in the Company Financial Statements or acquired after the date thereof (except for leases that have expired by their terms since the date thereof) (collectively with the Company Owned Properties, the “Company Real Property”), free and clear of all Liens of any nature whatsoever, except for Permitted Liens, and is in possession of the properties purported to be leased thereunder, and each such lease is valid without Default thereunder by the lessee or, to the Knowledge of the Company, the lessor. To the Knowledge of the Company, there are no pending or threatened condemnation proceedings against any Company Real Property. The Company has previously made available to Parent a true and complete list of all Company Real Property as of the date of this Agreement and a true and complete copy of all leases pursuant to which the Company or a Subsidiary leases real property, together with all amendments thereto.
Appears in 1 contract
Real and Personal Property. (ai) Section 3.14(a5F(i) of the Company Disclosure Letter sets forth (a) the address of each parcel of Leased Real Property, (b) the name of the current landlord under such Leases, and is a correct true and complete list of all Company Owned Leases for each such parcel of Leased Real Property, and (c) the amount of monthly (or other periodic, as the case may be) base or fixed rent payable for the month of (or period containing) May 2013. No Seller has subleased, licensed or otherwise granted to any Person the right to use or occupy such Leased Real Property showing the address and record titleholder or any portion thereof. .
(ii) The Company or one of the Subsidiaries has a Company Subsidiary has good valid leasehold interest in and marketable fee simple title to all Company Owned each of the Leased Real PropertyProperties, free and clear of any Liens, all Liens other than Permitted LiensEncumbrances. With The current use of the Leased Real Property is, in all material respects, in accordance with the certificates of occupancy relating thereto and the terms of any Licenses and Permits relating thereto. There is no pending or, to the Knowledge of the Company, threatened, appropriation, condemnation or similar action affecting the Leased Real Property. There has been no material destruction, damage or casualty with respect to each parcel of Company Owned the Leased Real Property. There has been no collateral assignment of the Leases or any security deposit paid or held thereunder, except nor are there any Liens on such security deposits created by the Company or any of its Subsidiaries. No security deposit or portion thereof deposited with respect to any Lease for the Leased Real Property has been applied in respect of any breach or alleged breach or default under such Lease which has not been restored, in full. There are no brokerage commissions now due or owing, or which may come due during the stated term of such Lease or any renewal thereof with respect to any Lease of the Leased Real Property.
(iii) Except (a) as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b5F(iii) of the Company Disclosure Letter sets forth a trueattached hereto and (b) for Permitted Encumbrances, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leasesone of its Subsidiaries owns, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any all Liens, other than Permitted Liens. Each or has a contract, license or lease to use, all of the Company Leases is in full force personal property and effect and constitutes a legal, valid and binding obligation of assets shown on the Company Latest Balance Sheet or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Leaseacquired thereafter.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(div) The Company Owned Real Property and the Company Leased Real Property constitute all of the its Subsidiaries do not own any real property used by the Company or any Company Subsidiary in the conduct of their businessproperty.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Real and Personal Property. (a) Section 3.14(a3.17(a) of the Company Seller Disclosure Letter Schedule sets forth a correct true and complete list of all real property owned by the Company or any of its Subsidiaries as of the date of this Agreement (the “Owned Real Property showing the address and record titleholder thereofProperty”). The Company or a Company Subsidiary has good and marketable title in fee simple title to all Company Owned Real Propertysimple, free and clear of any Liens, Encumbrances (other than Permitted LiensEncumbrances), to all of the Owned Real Property. With respect to each such parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, : (i) there are no written leases, subleases, licenses, concessions or other agreements granting any Person (other than the Company or any Subsidiary thereof) the right of use or occupancy of any portion of such parcel; and (ii) there are no outstanding optionsrights of first refusal, rights of first offer or rights of first refusal options to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b3.17(b) of the Company Seller Disclosure Letter Schedule sets forth a true, correct true and complete list list, as of the date hereof, of all of the material leases, material subleases and or other occupancy agreements material instruments or material permits pursuant to which the Company or any of its Subsidiaries holds a leasehold or subleasehold estate or other right to use or occupy any interest in real property owned by another Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to ), and each leased or subleased parcel of real property in which the Company or any Company Subsidiary leasesof its Subsidiaries is a tenant, subleases subtenant or otherwise occupies any real property and the address of such real property occupant thereunder (the “Company Leased Real Property”). The Company has heretofore made available to Parent true Leases contain the entire agreement between the landlord of each Leased Real Property and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or its Subsidiary and there is no other Contract between the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by landlord and the Company or any Company its Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in affecting the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither Leased Real Property.
(c) Neither the Company nor any of the Company its Subsidiaries is in negotiations with a party to any landlord to cancel lease, sublease, concession agreement, or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other use or occupancy agreements pursuant to agreement under which the Company or any Company Subsidiary leases of its Subsidiaries is a landlord, sublandlord, licensor, grantor of occupancy rights or subleases, as applicable, any Company Owned Real Property or Company sub-lessor of the Leased Real Property or Property, other than any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of foregoing with the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company a Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Leasethereof.
(d) The Company Owned Real Property or its Subsidiaries own all tangible personal property reflected as owned in the Balance Sheet, free and clear of all Encumbrances other than Permitted Encumbrances or Encumbrances arising pursuant to the Company Leased Real Property constitute all terms of the real property used by ABL Facility (and related documentation), the Company Indenture (and related documentation) or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations other Contracts entered into in the ordinary course of business consistent with past practicebusiness, except any such personal property that was sold or otherwise disposed of since the date of the Balance Sheet or is sold or otherwise disposed of in accordance with, or as contemplated by, the terms set forth herein or the other Transaction Documents. All the tangible personal property purchased or otherwise acquired by the Company and its Subsidiaries since the Balance Sheet Date is owned by the Company or its Subsidiaries free and clear of all Encumbrances, other than Permitted Encumbrances or Encumbrances arising pursuant to the terms of the ABL Facility (and related documentation), the Indenture (and related documentation) or other Contracts entered into in the ordinary course of business, except any such personal property that was sold or otherwise disposed of since the date of the purchase or other acquisition thereof or is sold or otherwise disposed of in accordance with, or as contemplated by, the terms set forth herein or the other Transaction Documents. As of immediately following the Closing, the tangible personal property owned by the Company or its Subsidiaries shall not be subject to any Encumbrances pursuant to the ABL Facility or the Indenture. A copy of the fixed asset register of the Company and each of its Subsidiaries as of March 31, 2012, has been delivered to Purchaser prior to the date hereof. Such register contains a complete and correct list in all material respects of the fixed assets of the Company and its Subsidiaries as of March 31, 2012.
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Sources: Membership Interest Purchase Agreement (United Maritime Group, LLC)
Real and Personal Property. (a) Section 3.14(a6.15(a) of the Company Disclosure Letter Schedule sets forth a correct true and complete list of all Company Owned Real Property showing Contracts under which the address BP Group leases, subleases or licenses real property (collectively, the “Leases” and record titleholder thereofeach description of the real property demised under the Leases, collectively, the “Leased Properties”). All Leases arose in arm’s-length transactions in the ordinary course of business. The Company BP Group has, and immediately following the Closing and after giving effect thereto will have, a good and valid leasehold title to each Leased Property, subject only to the terms and conditions of the applicable Lease and to any Permitted Liens. Except as set forth in Section 6.15(a) of the Disclosure Schedule, the BP Group has not leased or otherwise granted to any Person the right to use or occupy any Leased Property or any portion thereof.
(b) No member of the BP Group owns any real property.
(c) There is no pending, or, to the Knowledge of the Partnership, threatened, appropriation, condemnation or like Action materially affecting the Leased Properties or any part thereof or any sale or other disposition of any part thereof in lieu of condemnation or other matters materially affecting and impairing the current use, occupancy or value thereof.
(d) The use by the BP Group of the Leased Properties or any portion thereof and the improvements erected thereon, does not, in any material respect, breach, violate or conflict with (i) any covenants, conditions or restrictions applicable thereto or (ii) the terms and provisions of the applicable Lease.
(e) Taking into account (i) the services that will be provided by members of the Cantor Group or the Partnership Group to the BP Group after the Closing and (ii) the services provided by members of the BGC Partners Group to the BP Group as of the Agreement Date, the BP Group will have immediately following the Closing, good and valid title to, or a Company Subsidiary has good valid and marketable fee simple title enforceable leasehold interest in or license to, all of the assets and properties, whether real, personal, tangible or intangible, that are necessary to carry on the Business from and after the Closing Date in all Company Owned Real Propertymaterial respects in substantially the same manner as conducted immediately prior to the Closing, free and clear of any Liens, other than all Liens except for Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) As of the Company Disclosure LetterClosing Date, the BP Group will hold sufficient cash and cash equivalents to operate the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed Business in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respectsordinary course of business.
(bf) Section 3.14(b) of the Company Disclosure Letter sets forth a trueThe facilities, correct and complete list of all leasesmachinery, subleases equipment, furniture, leasehold improvements, fixtures, vehicles, structures, related capitalized items and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real tangible property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of defaultthat are, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to ParentBP Group, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
taken as a whole (c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party LeasesTangible Property”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is , are in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable good operating condition and repair, ordinary wear subject to continued repair and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations replacement in the ordinary course of business consistent with business, and are suitable for their intended use. In the past practicethree (3) years there has not been any significant interruption of the operations of the Business due to inadequate maintenance of the Tangible Property.
Appears in 1 contract
Real and Personal Property. (a) Each of the Company or one or more of its subsidiaries has good and marketable title to, or valid leasehold interests in, all of its real and personal property and assets, free and clear of all Liens, other than Permitted Encumbrances and those Liens to be released under Section 3.14(a6.14.
(b) As of the date of this Agreement, the Company and its subsidiaries do not own any real property.
(c) Section 4.13(c) of the Company Disclosure Letter sets forth a correct true and complete list list, as of all Company Owned Real Property showing the address and record titleholder thereof. The date of this Agreement, of each lease, sublease, license, colocation agreement or other occupancy agreement in respect of any real property to which the Company or any of its subsidiaries is a Company Subsidiary has good party as lessee, sublessee, licensee or occupant (each such lease, sublease, license, colocation agreement or other occupancy agreement, together with any amendments thereto, and marketable fee simple title any lease, sublease, license, colocation agreement or other occupancy agreement entered into after the date hereof that would have been required to all Company Owned Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth be listed on Section 3.14(a4.13(c) of the Company Disclosure Letter, a “Real Property Lease” and the real property demised under or subject to each Real Property Lease, a “Leased Property”). Complete and accurate copies of each Real Property Lease have been delivered to Parent, and no such Real Property Lease has been modified, amended, waived or terminated since the date of such delivery. With respect to the knowledge Leased Properties, except as set forth in Section 4.13(c) of the Company Disclosure Letter, as of the date of this Agreement, (i) each Real Property Lease is valid, binding and in full force and effect and is enforceable by the Company or one of its subsidiaries (as applicable) against the other party or parties thereto in accordance with its terms, subject to the Bankruptcy Exceptions, (ii) the Company or one of its subsidiaries (as applicable) has performed all material obligations required to be performed by it under each Real Property Lease and is not (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder beyond any applicable cure period, (iii) to the Knowledge of the Company, no other party to any Real Property Lease is (iwith or without notice or lapse of time, or both) there are no outstanding optionsin breach or default in any material respect thereunder, rights (iv) the delivery and execution of first offer this Agreement and the consummation of the transactions contemplated hereunder do not require the consent of the landlord or rights any other person under any such Real Property Lease (v) none of first refusal the Company or its subsidiaries have subleased, licensed or otherwise granted anyone the right to purchase such parcel use or occupy any Leased Property or any portion thereof or have collaterally assigned or granted any other security interest in any such leasehold estate or any interest therein, and (iivi) there is no the Company has not received written notice of any expropriation, condemnation or other proceeding in eminent domaindomain pending or, pending or to the Knowledge of the Company, threatened, affecting such parcel or any portion thereof or interest thereinof a Leased Property.
(d) Except for the Real Property Leases and the Leased Properties, (iii) all obligations none of the Company or a Company Subsidiary with regard any of its subsidiaries occupy, are legally obligated for, have an interest in, or otherwise use, any land, buildings, facilities, locations or offices, and nor do they have any rights or obligations to all applicable covenantsacquire such interests.
(e) The assets, easements properties and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner rights owned by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b) of its subsidiaries, including the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant Contracts to which the Company or any of its subsidiaries is a party, comprise all of the assets, properties and rights utilized by the Company Subsidiary leasesand its subsidiaries in the operation of its business as presently conducted, subleases or otherwise occupies and are sufficient in all material respects to permit the Company and its subsidiaries to operate their businesses as presently conducted. No Unitholder nor any real property and the address of such real property their affiliates (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each the Company and its subsidiaries) owns or has any interest in any of the Company Leases is in full force and effect and constitutes a legalassets, valid and binding obligation of the Company properties or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) rights utilized by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or its subsidiaries in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct operation of their businessbusinesses as presently conducted.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Real and Personal Property. (a) Section 3.14(a) of the Company Disclosure Letter sets forth a correct and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company Owned Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b22(a) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements real property (together with any amendments, modifications and other supplements thereto, collectively, including their street addresses) owned by the “Company Leases”) pursuant to or a Subsidiary or which the Company or any Company a Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property hold an ownership interest (the “Company Leased Owned Real Property”). The Except as set forth in Section 22(a) of the Company has heretofore made available Disclosure Letter, the Company and its Subsidiaries have good, valid and defensible title to Parent true and complete copies of all Company Leases. The Owned Real Property owned by the Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leasesits Subsidiaries, in each case free and clear of any all Liens, other than except Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(cb) Section 3.14(c22(b) of the Company Disclosure Letter sets forth a true, correct and complete list of any and all leases, subleases and other occupancy agreements pursuant to premises which the Company or any Company Subsidiary leases or subleasesoccupies as a tenant (the “Leased Real Property”, as applicable, any Company and together with the Owned Real Property or Property, the “Real Property”). Section (22)(21) of the Company 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 premises leased; (ii) the date of the lease; (iii) the original and current parties to the lease; (iv) the area of the space subject to each lease; (v) the remaining term and any portion thereof unexpired options to extend or renew (as applicable); (vi) the rent payable thereunder; (vii) the amount of any Person prepaid rent (together with if any), and (viii) the identification of any amendments, modifications and other supplements thereto, collectively, guarantee or security deposits given in respect of the “Company Third Party Leases”). lease to the extent available.
(c) The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legalits Subsidiaries have good, valid and binding obligation of the Company marketable title to, and/or a valid and enforceable interest and tenure (whether leasehold, licenced or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously curedotherwise) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregateLeased Real Property, has not had including in and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Leasefixtures thereto.
(d) The Company Owned There are no leases, subleases, licenses, concessions or other Contracts, written or oral, granting to any Person the right of use or occupancy of any portion of the Real Property and the Company Leased Real Property constitute all except in favor of the real property used by the Company or any its Subsidiaries. There are no Persons in possession of such Real Property except the Company Subsidiary in the conduct or one of their businessits Subsidiaries.
(e) The propertyCompany and/or its Subsidiaries, plant as the case may be, enjoys exclusive, peaceful, and equipment quiet possession of the Leased Real Property in accordance with the terms of the lease thereof, is not in default or breach under such lease, and no event has occurred which, after the giving of notice, with lapse of time, or both, would constitute a default or breach by the Company and/or its Subsidiaries. The Company and/or its Subsidiaries, as the case may be, has timely paid all rent and other sums due and payable under the lease(s) for the Leased Real Property.
(f) 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, and the Company and its Subsidiaries own, lease or licence all personal property as is necessary for them to conduct their business as presently conducted (collectively, the “Personal Property”), and the Company and its Subsidiaries have good and valid title to, or a valid and enforceable interest (whether a leasehold interest or otherwise) in, all of such Personal Property.
(g) There are no material suits, actions or proceedings pending or, to the Company's Knowledge, threatened against or affecting any of the Real Property or Personal Property before any Governmental Entity.
(h) There are no pending, or to the Company’s Knowledge, threatened or contemplated condemnation, eminent domain or expropriation proceedings with respect to any of the Real Property, or any part thereof, and none of the Company or any of its Subsidiaries has been maintained received any notice, oral or written, of the intention of any Governmental Entity or other Person to take or use any Real Property, or any part thereof.
(i) 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 Real Property (or any portion thereof or interest therein) or any of the material assets owned or leased or otherwise held by the Company or its Subsidiaries, or any part thereof or interest therein, except in reasonable operating condition and repair, ordinary wear and tear exceptedconnection with the Arrangement.
(j) The Company has not received any written notice of, and is to the Company’s Knowledge, there are no disputes regarding boundaries, easements, covenants or other matters relating to any of the Real Property.
(k) The current uses of the Real Property are lawful and valid under all applicable Law (other than Cannabis Laws) in all material respects sufficient to permit the Company and the Company Subsidiaries has received all requisite permissions authorizing such uses. No Real Property is subject to conduct their operations any building or use restriction that would restrict or prevent the business of the Company as currently conducted in the ordinary course Ordinary Course. Each Real Property is zoned for its current use, and such current use is in all respects a conforming use. No Governmental Entity having jurisdiction over the Real Property has issued, or to the Company's knowledge, threatened to issue any notice or order, injunction, judgment, decree, ruling, writ or arbitration award that adversely affects the use or operation of business consistent with past practiceany Real Property.
(l) To the Company’s Knowledge, all required consents and approvals (including, without limitation, certificates of occupancy) have been obtained in respect of the development of the Real Property and any alteration, extension or other improvement thereof.
Appears in 1 contract
Real and Personal Property. (a) Section 3.14(a2.10(i) of the Company Disclosure Letter Schedule ---------------------------------------------------------------------- sets forth a correct the addresses and complete list uses of all real property that the Company Owned Real Property showing owns, leases or subleases, or will own, lease or sublease immediately after giving effect to the address Nycomed Acquisition. Except as set forth in Section 2.10(ii) of ------------------- the Disclosure Schedule, the Company has, or will have after giving effect to ----------------------- the Nycomed Acquisition, good, valid and record titleholder thereof. The Company or a Company Subsidiary has good and (if applicable) marketable fee simple title to all those assets reflected on a balance sheet of the Company Owned Real Property, prepared as of the Closing and delivered to Investor prior thereto (the "Closing Balance Sheet") --------------------- free and clear of all liens, claims or encumbrances of any Liensnature, other than Permitted Liensliens for Taxes (as hereinafter defined) not yet due and payable, minor liens and encumbrances that do not materially detract from the value of the property subject thereto or materially impair the operations of the Company, and liens that have otherwise arisen in the ordinary course of business. With respect All equipment included in such properties which is necessary to each parcel the business to be conducted by the Company is in good condition and repair (ordinary wear and tear excepted) and all leases of real or personal property to which the Company Owned Real Propertyis a party, except as set forth on Section 3.14(aor will be a party after giving effect to the Nycomed Acquisition, are fully effective and afford, or will afford after giving effect to the Nycomed Acquisition, the Company peaceful and undisturbed possession of the subject matter of the lease. After giving effect to the Nycomed Acquisition, the property and assets of the Company will be sufficient for the conduct of the business to be conducted by the Company. The Company is not, and after giving effect to the Nycomed Acquisition will not be, in violation of any zoning, building or safety ordinance, regulation or requirement or other law or regulation applicable to the operation of the properties owned or leased or to be owned or leased by it, which violation would have a Material Adverse Effect, nor do circumstances (other than the environmental conditions described in Schedule 2.10(iii) of the Company Disclosure Letter, Schedule) exist which to the --------------------------------------------- best knowledge of the Company would give rise to any such violation. There are no defaults by the Company or to the best knowledge of the Company, by any other party (i) there are no outstanding optionsincluding Nycomed), rights of first offer or rights of first refusal to purchase such parcel or which might curtail in any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations material respect the present use of the Company or a Company Subsidiary with regard Company's property after giving effect to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner the Nycomed Acquisition. The performance by the Company or a Company Subsidiary of this Agreement and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b) the consummation of the Company Disclosure Letter sets forth a trueNycomed Acquisition will not result in the termination of, correct and complete list or in any increase of all leasesany amounts payable under, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Leaseleases.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Sources: Stock Purchase Agreement (Albany Molecular Research Inc)
Real and Personal Property. (a) To the knowledge of the Company, the Company and/or one or more of its Subsidiaries have valid title to, or valid leasehold or sublease interests or other comparable contract rights in or relating to, all of the real property and personal property necessary for the conduct of the business of the Company and its Subsidiaries, taken as a whole, as currently conducted, free and clear of Liens subject to minor imperfections in title that would not materially affect the Surviving Corporation’s use and enjoyment thereof after the Effective Time. Section 3.14(a4.13(a) of the Company Disclosure Letter Schedule as of the date hereof sets forth a correct and complete list of all Company Owned Real Property showing the address owned real property and record titleholder thereofreal property subject to a Lease. The Company or and/or its Subsidiaries has a Company Subsidiary has good valid leasehold interest in the leasehold estates and marketable fee simple title to all Company Owned Real Property, licenses created by the Leases free and clear of any Liens, other than Permitted Liens. With except where such Liens would not interfere in any material respect to each parcel with the conduct of Company Owned Real Property, except as set forth on Section 3.14(a) the business of the Company Disclosure Letterand its Subsidiaries, taken as a whole, as currently conducted on the leased premises. No consent or approval is required to be obtained under any of the Leases, and no material breach, default or right of termination shall arise under any Lease nor does any landlord or other party have the right to increase the amounts payable or charge any sum under any Lease, in each case in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, (i) there are no outstanding optionsany affiliates of any of the foregoing is, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest thereinhas an ownership, (ii) there is no condemnation financial or other proceeding in eminent domaininterest in, pending or threatened, affecting such parcel or the landlord under any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respectsLeases.
(b) Section 3.14(b) All of the Company Disclosure Letter sets forth a trueCompany's and its Subsidiaries' material personal property, correct including computers, electronics, leasehold improvements, furnishings, machinery and complete list of all leasesequipment, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force good repair (ordinary wear and effect and constitutes a legaltear excepted), valid and binding obligation of the Company or the applicable Company Subsidiary. To is in good working order and, to the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations materially complies with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Leaseall applicable Laws.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Real and Personal Property. (a) All of the real property owned by the Company or a Subsidiary of the Company is set forth on Section 3.14(a4.17(a) of the Company Disclosure Letter sets forth a correct and complete list of all Company Owned Real Property showing (the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company “Owned Real Property”). All real property leased, free and clear subleased, or licensed from a third party or otherwise occupied (whether as a tenant, subtenant or pursuant to other occupancy arrangements) by the Company or any of any Liensits Subsidiaries (collectively, other than Permitted Liens. With respect to each parcel of Company Owned including the improvements thereon, the “Leased Real Property, except as set forth on ”) is disclosed in Section 3.14(a4.17(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b) of the Except as would not have a Company Disclosure Letter sets forth a trueMaterial Adverse Effect, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leasesone of its Subsidiaries has indefeasible fee simple title to each parcel of Owned Real Property and a valid leasehold, subleases subleasehold or otherwise occupies any real property and the address license interest in each parcel of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case case, free and clear of any all Liens, other than except Permitted Liens. Each .
(c) As of the Company Leases is in full force and effect and constitutes a legaldate hereof, valid and binding obligation of to the Company or the applicable Company Subsidiary. To the knowledge Knowledge of the Company, neither the Company nor any of its Subsidiaries has received any written communication from, or given any written communication to, any other party to a lease for the Leased Real Property to which the Company or a Subsidiary is in default a party (which has not been previously curedeach, a “Real Property Lease”) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by alleging that the Company or any Company Subsidiary since January 1of its Subsidiaries or such other party, 2006as the case may be, except for any such is in default or notice under a Real Property Lease. True, correct and complete copies of default, individually or each Real Property Lease have been provided in the aggregateVDR, that has not had and would not reasonably be expected to result each Real Property Lease is in a Company Material Adverse Effect. The terms full force and effect.
(d) To the Knowledge of the Company Leases have not been modified Company, none of the Owned Real Property or Leased Real Property is in violation of any material respect, except to the extent that such modifications are set forth in the documents previously made available to ParentLaws of any Governmental Authority, and neither the Company nor any Subsidiary has received written notice of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Leaseviolation.
(ce) Section 3.14(c) of There are no pending condemnation proceedings affecting the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company or, to the Knowledge of the Company, any of the Leased Real Property or any portion thereof Property, and to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge Knowledge of the Company, neither the Company nor any Subsidiary of the Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any received written notice of default been received any threatened or contemplated condemnation proceeding affecting the Owned Real Property or Leased Real Property.
(which has not been previously curedf) by All material tangible assets (including Owned Real Property and Leased Real Property) of the Company or any Company Subsidiary since January 1and its Subsidiaries are, 2006in the aggregate (and with due consideration for reasonable wear and tear and the age of each specific tangible asset), in sufficient operating condition and repair, except for any such default or notice of default thatas would not, individually or in the aggregate, has not had and would not reasonably be expected to result in have a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Real and Personal Property. (a) Section 3.14(aNeither the Company nor any Subsidiary owns any real property.
(b) Schedule 3.10(b) sets forth a list of all real property leased by the Company or any of its Subsidiaries and sets forth the municipal address thereof (the “Leased Real Property”). All leases (including subleases) relating to Leased Real Property are identified on Schedule 3.10(b) (each a “Lease” and collectively, the “Leases”) and the Company has made available to the Buyer a true and complete copy of each Lease (including any amendments and renewals) for each parcel of Leased Real Property. None of the Company Disclosure Letter sets forth nor its Subsidiary is a correct and complete list of all Company Owned party to, or is under any agreement to become a party, nor has any right or interest in, any lease with respect to real property other than the Leased Real Property showing and the address Leases identified on Schedule 3.10(b). Each Leased Real Property is adequate and record titleholder thereofsuitable for the purpose for which it is presently being used, and the Company or its Subsidiaries, as the case may be, has the adequate rights of ingress and egress into each Leased Real Property for the operation of the Business in the ordinary course of business. The With respect to each Lease:
(i) the Company or a Subsidiary of the Company, as applicable, have valid and enforceable leasehold interests to the leasehold estate in the Leased Real Property granted to the Company or its Subsidiary, as applicable, pursuant to each pertinent Lease, except as such enforceability may be limited by General Enforceability Exceptions;
(ii) each Lease has been duly authorized and executed by the Company or its Subsidiary, as applicable, is in good standing, is in full force and effect without amendment, except as disclosed in Schedule 3.10(b), and is legal, valid and binding on the Company or applicable Subsidiary, except as such enforceability may be limited by General Enforceability Exceptions;
(iii) none of the Company, any Subsidiary or, to the Company’s knowledge, any other party to any of the Leases is in material breach or material default of any provision under any of said Leases (including any default relating to the payment of base rent or additional rent), nor to the Company’s knowledge has any event occurred which, with notice or the passage of time, or both, would give rise to such a material breach or material default by the Company or any Subsidiary or, to the Company’s knowledge, any other party to any of the Leases, as applicable;
(iv) the possession and quiet enjoyment by the Company or applicable Subsidiary of the Leased Real Property under such Leases has not been disturbed and there are no disputes between the Company and the landlord of the Leased Real Property with respect to any Lease; and
(v) except as disclosed in Schedule 3.10(b), there are no restrictions on assignment or change of control of the Company or its Subsidiary in the Leases.
(c) Except as set forth on Schedule 3.10(c) or as specifically disclosed in the Latest Balance Sheet, and except with respect to leased personal property, the Company and each of its Subsidiaries have good and marketable fee simple title to all Company Owned Real Propertyof their tangible personal property and assets shown on the Latest Balance Sheet or acquired after the date of the Latest Balance Sheet, free and clear of any Liens, other than except for Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Real and Personal Property. (a) Section 3.14(aSchedule 4.16(a) includes a complete and accurate list of all real property owned by any Amtrol Company (the “Owned Real Property”) and real property (the “Leased Real Property”) held under any lease, sublease, license, or other occupancy agreement by any Amtrol Company (collectively the “Real Property Leases”). Schedule 4.16(a) includes list of all of the Company Disclosure Letter sets forth a Real Property Leases, true, correct and complete list copies of which have been made available to Purchaser, including all Company amendments, extensions, renewals, guaranties and other agreements with respect thereto. The buildings, plants, facilities, installations, fixtures and other structures or improvements themselves included as part of, or located on or at, the Owned Real Property showing are not in material violation of, or in material conflict with, any applicable Law (including zoning ordinances and regulations). All covenants or other restrictions (if any) to which the address use by any Amtrol Company of any of the Owned Real Property is subject are being in all material respects properly performed and record titleholder observed, and no Amtrol Company has received any notice of any material violation (or claimed violation) thereof. The activities carried on by any Amtrol Company as tenant under any of the Real Property Leases in all buildings, plants, facilities, installations and other structures or improvements included as a part of, or located on or at, the Leased Real Property are not in material violation of, or in material conflict with, any applicable Law (including zoning ordinances and regulations) or the terms of any of the Real Property Leases.
(b) The applicable Amtrol Company Subsidiary has holds good and marketable fee simple title to all Company the Owned Real Property, which shall be free and clear of any all Liens as of the Closing Date, except Permitted Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) and there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel Owned Real Property or any portion thereof or interest therein. No Amtrol Company has received a copy of an affidavit of a mechanic’s or similar Lien which may be filed against the Owned Real Property or the Leased Real Property.
(c) All of the Real Property Leases are in full force and effect, valid and enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (iiregardless of whether enforcement is sought in a proceeding at law or in equity). There exist no defaults (or any event or circumstance has occurred or exists which, with the delivery of notice, passage of time or both, would constitute a default) on the part of any Amtrol Company under any Real Property Lease or, to the Knowledge of the Company, on the part of any other party to any Real Property Lease, that could have a material impact on the ongoing operations of the business of such Amtrol Company or permit the termination, modification or acceleration of rent under such Real Property Lease. Neither the Company nor any of the Amtrol Companies have entered into any lease of any of the Leased Real Property where the Company or any of the Amtrol Companies is the lessor or sublessor or is otherwise similarly situated, and there are no other Contracts granting to any Person other than an Amtrol Company the right to use or occupy any Leased Real Property.
(d) There is no condemnation, expropriation or other proceeding in eminent domain pending or threatened in writing, or to the Knowledge of the Company, threatened orally, affecting any Owned Real Property or any portion thereof or interest therein. To the Knowledge of the Company, there is no condemnation condemnation, expropriation or other proceeding in eminent domain, pending or threatened, affecting such parcel any Leased Real Property or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(be) Section 3.14(b) All utilities required for the normal, customary and efficient operation of the Company Disclosure Letter sets forth a true, correct and complete list respective businesses of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which Amtrol Companies are currently available at the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property Owned Real Property and the address Leased Real Property in a quality and quantity sufficient for operation of the business of the Amtrol Companies conducted thereat and all utility service lines serving the Owned Real Property are located either within the boundary lines of such real property (or within lands dedicated to public use or within recorded easements for the “Company same; there are no facts relating to any utility arrangements or moratoriums which would adversely impact the Owned Real Property or the Leased Real Property or the operation of the respective businesses of the Amtrol Companies conducted thereat; all such utility service lines are in good condition; and there are no obligations in connection with the Owned Real Property or the Leased Real Property”), or any so-called “recapture agreement” involving refund for sewer extension, over sizing utility lines, lighting or like expense or charge for work or services done upon or relating to the Owned Real Property or the Leased Real Property which will bind Purchaser or its Affiliates or the Owned Real Property or the Leased Real Property from and after the Closing. Any so-called tap fees, hook-up fees or other associated charges accrued to date have been fully paid when due in the ordinary course of the businesses of the Amtrol Companies with respect to all potable and industrial water and all gas, electrical, steam, compressed air, telecommunication, sanitary and storm sewage lines and systems and other similar systems serving the Owned Real Property and the Leased Real Property.
(f) There are no encroachments upon the Owned Real Property or the Leased Real Property from adjacent properties, nor encroachments of any Improvement located on the Owned Real Property or, to the Knowledge of the Company, the Leased Real Property upon adjoining land.
(g) The Company has heretofore made available delivered to Parent true and complete Purchaser copies of all Company Leases. existing owner’s title insurance policies for the Owned Real Property, together with copies of all documents referenced therein, and the same are true, accurate and complete.
(h) The Company has delivered to Purchaser a correct and complete copy of the most recently performed surveys of the Owned Real Property, and the same are true, accurate and complete.
(i) No portion of the Owned Real Property or, to the Knowledge of the Company, the Leased Real Property is subject to any significant real property Tax increases or a Company Subsidiary recapture of Taxes occasioned by retroactive revaluation, special assessments, change in the land usage, or loss of any exemption or benefit status.
(j) None of the Amtrol Companies has entered into any Contracts materially and adversely affecting or materially and adversely impacting the Owned Real Property or the Leased Real Property which will bind Purchaser or any of its Affiliates in respect of the Owned Real Property or the Leased Real Property from and after the Closing Date.
(k) Each of the Amtrol Companies owns good and valid title to all material items of tangible personal property reflected as owned by it in the leasehold estate created under Interim Balance Sheet (other than Inventory sold since the respective Company Leasesdate of the Interim Balance Sheet in the Ordinary Course of Business), in each case free and clear of any all Liens, other than Permitted Liens, and as set forth in Schedule 4.16(k). Each All the material items of tangible personal property purchased or otherwise acquired by an Amtrol Company since the date of the Company Leases is Interim Balance Sheet (other than Inventory acquired and sold in full force and effect and constitutes a legal, valid and binding obligation the Ordinary Course of Business since the date of the Interim Balance Sheet) is owned by such Amtrol Company free and clear of all Liens, other than Permitted Liens and as set forth in Schedule 4.16(k).
(l) The buildings, plants, structures and equipment owned or leased by the applicable Company SubsidiaryAmtrol Companies and used in connection with their respective businesses (i) are in good operating condition and repair as is consistent for their age, (ii) are appropriate for the uses to which they are being put by the Amtrol Companies, (iii) have been maintained in accordance with normal industry practice and (iv) require no material repair, replacement or maintenance, other than routine maintenance and repair for similar assets of like age and construction. To the knowledge There are no facts or conditions affecting any of the Companybuildings, neither the Company nor any Company Subsidiary is in default (plants, structure and equipment which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of defaultwould, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified interfere in any material respect, except to respect with the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any use or occupancy of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a truebuildings, correct plants, structures and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property equipment or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, in the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each operation of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Leasebusiness conducted therein.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Sources: Merger Agreement
Real and Personal Property. (a) Section 3.14(a3.18(a) of the Company Disclosure Letter Schedules sets forth a correct true and complete list (including street addresses) of all Company real property owned by any of the Group Companies (the “Owned Real Property showing Property” and, together with the address and record titleholder thereofLeased Real Property, the “Real Property”). The Except as set forth in Section 3.18(a) of the Company or a Company Subsidiary has Disclosure Schedule, (i) the Group Companies have good and marketable fee simple title to all Company the Owned Real Property, free and clear of any Liens, other than all Liens (except for Permitted Liens. With respect to each parcel of Company ), (ii) no Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, Property is subject to the knowledge of the Company, (i) there are no any outstanding options, rights of first offer options or rights of first refusal to purchase such parcel any Owned Real Property, or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or of any portion thereof Owned Real Property or interest therein, (iii) all obligations no Owned Real Property is subject to any lease, sublease, concession, license, occupancy agreement, outstanding option or right of first refusal to lease, or other contracts or arrangement granting to any Person (other than the Company Group Companies) the right to occupy any Owned Real Property, or a Company Subsidiary with regard to all applicable covenantsany portion of any Owned Real Property, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) there are no Persons other than the Group Companies in possession of any Owned Real Property. There are currently in effect such parcel is in compliance insurance policies for the Owned Real Property as are customarily maintained with all applicable Laws in all material respectsrespect to similar properties utilized for comparable purposes.
(b) Section 3.14(b3.18(b) of the Company Disclosure Letter Schedules sets forth a true, correct true and complete list (including street addresses) of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and leased by any of the address of such real property Group Companies (the “Company Leased Real Property”)) and all Real Property Leases pursuant to which any Group Company is a tenant or landlord as of the date of this Agreement. The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and Group Companies have valid title leasehold interests to the leasehold estate created under the respective Company LeasesLeased Real Property, in each case free and clear of any Liens, other than all Liens (except for Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company Liens or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements Liens created pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations Indebtedness incurred in the ordinary course of business consistent with past practice). True and complete copies of all such Real Property Leases (including all material amendments, extensions, renewals and guaranties with respect thereto) have been made available to BOA. Each Real Property Lease is in full force and effect and is a valid, legal and binding obligation of the applicable Group Company party thereto, enforceable in accordance with its terms against such Group Company and, to the Company’s knowledge, each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). There is no official written notice of an event of default by any Group Company or, to the Company’s knowledge, any counterparty under any Real Property Lease, and, to the Company’s knowledge, no event has occurred which (with or without notice or lapse of time or both) would constitute a material breach or default under any Real Property Lease or would permit termination of, or a material modification or acceleration thereof, by any counterparty to any Real Property Lease. The Group Companies’ have not received written notice of any material disputes with respect to any Real Property Lease.
(c) The Company is not in breach or default of any restrictive covenant affecting the Real Property, and there has not occurred any event that with the lapse of time or the giving of notice, or both, would constitute such a default under any such restrictive covenant, in each case except as would not reasonably be expected, individually or in the aggregate, to be material to the Group Companies (taken as a whole). To the Company’s knowledge, there are no pending or threatened condemnation, expropriation or eminent domain proceedings with respect to any Real Property.
(d) Except as would not reasonably be expected to, individually or in the aggregate, be material to the Group Companies (taken as a whole), (i) the use by the Group Companies of the land, buildings, structures and improvements on the Real Property are in conformity with all applicable Laws, including, without limitation, all applicable zoning Laws, and with all registered deeds, restrictions of record or other agreements of record affecting such Real Property, (ii) there exists no conflict or dispute with any Governmental Authority, regulatory authority or other person relating to any Real Property or the activities thereon or the occupancy or use thereof of which the Company has received written notice, and (iii) all requisite certificates of occupancy and other permits or approvals required with respect to the land, buildings, structures and improvements on any of the Owned Real Property and the occupancy and use thereof have been obtained and are currently in effect.
(e) To the knowledge of the Company, no damage or destruction has occurred with respect to any of the Real Property that would be material to the Group Companies (taken as a whole), whether or not covered by an enforceable insurance policy and no Group Company has received notice that the buildings and other structures on the Real Property are not in good and substantial repair.
(f) Each Group Company has good, marketable and indefeasible title to, or a valid leasehold interest in or license or right to use, all of the material assets and properties of the Group Companies reflected in the Financial Statements or thereafter acquired by the Group Companies, except for assets disposed of in the ordinary course of business.
Appears in 1 contract
Sources: Business Combination Agreement (BOA Acquisition Corp.)
Real and Personal Property. (a) The Company or a Subsidiary possesses, free and clear of all Liens, except for Permitted Liens, good, valid and marketable title to real property and interests in real property (the “Owned Real Property”) or good and valid leasehold interests in the leased real property (the “Leased Real Property”) used or held for use by it in the conduct of its respective business, in each case as necessary to permit the Company and the Subsidiaries to conduct their respective businesses as currently conducted in all material respects. Section 3.14(a) 3.17 of the Company Disclosure Letter sets forth Schedule contains a correct true and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company Owned Leased Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b) Each of the Company Disclosure Letter sets forth a true, correct and complete list its Subsidiaries has complied in all material respects with the terms of all leases, material leases and subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, applicable to the “Company Leases”) pursuant Leased Real Property to which it is a party or under which it is in occupancy, and all such leases and subleases are valid, legally binding, enforceable and in full force and effect. No notice of any material default under any material such lease has been delivered to the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation none of the Company or the applicable Company Subsidiary. To the knowledge any of the Company, neither the Company nor any Company Subsidiary its Subsidiaries is in breach or violation of or default (which under such lease or sublease, and no event has not been previously cured) under occurred which, with notice, lapse of time or both, would constitute a breach, violation or default by any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or its Subsidiaries or permit termination, modification or acceleration or repudiation by any Company Subsidiary since January 1third party thereunder, 2006or prevent, materially delay or materially impair the consummation of the transactions contemplated by this Agreement except in each case, for any such default invalidity, failure to be binding, unenforceability, ineffectiveness, breaches, violations, defaults, charges, terminations, modifications, accelerations or notice of default, individually or in the aggregate, repudiations that has have not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default thathave, individually or in the aggregate, has a Company Material Adverse Effect.
(c) Except as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each of the Company and its Subsidiaries has fulfilled and performed all of its obligations with respect to any material authorizations, permits, easements, prescriptive rights and rights of way, whether or not of record, pertaining to real property (the “Real Property Easements”) necessary to conduct their businesses as conducted on the date hereof, and to the Company’s knowledge, no event has occurred that would allow, with or without notice or lapse of time or both, revocation or termination thereof or would result in any impairment of the rights of the Company or any Subsidiary with respect to any Real Property Easement, except for such revocations, terminations and impairments as would not affect the commercial use of the applicable property for the purposes for which it is being used by the Company or a Subsidiary as of the date of this Agreement.
(d) Neither the Company nor any Subsidiary has received any written notice of any pending, threatened or contemplated condemnation, eminent domain, litigation, administrative action or similar proceedings by any Governmental Authority involving the taking of any real property or any portion thereof or interest therein, or any sale or other disposition of any real property to which it holds title or any portion thereof in lieu of condemnation, that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The terms There are no outstanding options or rights of first refusal to purchase all or any portion of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their businessinterest therein.
(e) The property, plant and equipment of the Company and its Subsidiaries, individually or together, own, lease or have the Company Subsidiaries has been maintained right to use all of their personal property used or held for use by it in reasonable operating condition and repairthe conduct of their respective businesses (the “Personal Property”), ordinary wear and tear excepted, and is in all material respects sufficient as necessary to permit the Company and the Company its Subsidiaries to conduct their operations respective businesses as currently conducted in all material respects. The Company and each of its Subsidiaries has title to, or in the ordinary course case of business consistent with past practiceleased or subleased Personal Property, valid and subsisting leasehold interests in, all of the Personal Property free and clear of Liens, other than Permitted Liens.
Appears in 1 contract
Real and Personal Property. (a) Each of the Company and its subsidiaries has good and marketable title to, or valid leasehold interests in, all of its real and personal property and assets, free and clear of all Liens, other than Permitted Liens. The Company and its subsidiaries own, lease or otherwise possess a valid legal interest in all Company Properties necessary and sufficient for the conduct of the Business.
(b) Section 3.14(a3.13(b) of the Company Disclosure Letter sets forth a correct true and complete list list, as of the date of this Agreement, of all Company Owned Real Property showing land, buildings, facilities, locations, offices and other real property interests owned in fee simple by the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company any of its subsidiaries (each, an “Owned Real Property”), including, for each such Owned Property, free a legal description (with acreage and clear square footage), the name of any Liensthe record owner, other than Permitted Liensand the permitted use thereof. With respect to each parcel of Company the Owned Real PropertyProperties, except as set forth on Section 3.14(a(i) none of the Company Disclosure Letter, or its subsidiaries have leased or otherwise granted anyone the right to the knowledge of the Companyuse or occupy any Owned Property or any portion thereof, (iii) there are no outstanding contracts, options, rights of first offer or rights of first refusal in favor of any third parties to purchase such parcel any Owned Property or any portion thereof or interest therein, therein and (iiiii) there is no condemnation or other proceeding in eminent domain, pending or or, to the Knowledge of the Company, threatened, affecting such any parcel of Owned Property or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(bc) Section 3.14(b3.13(c) of the Company Disclosure Letter sets forth a true, correct true and complete list list, as of all leasesthe date of this Agreement, subleases and of each lease, sublease, license or other occupancy agreements (together with agreement in respect of any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant real property to which the Company or any of its subsidiaries is a party as lessee, sublessee, licensee or occupant (each such lease, sublease, license or other occupancy agreement, together with any amendments thereto, and any lease, sublease, license or other occupancy agreement entered into after the date hereof that would have been required to be listed on Section 3.13(c) of the Company Subsidiary leasesDisclosure Letter, subleases or otherwise occupies any a “Real Property Lease” and the real property and the address of such real property (the demised under or subject to each Real Property Lease, a “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title With respect to the leasehold estate created under the respective Company LeasesLeased Properties, in (i) each case free Real Property Lease is legal, valid, binding and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legalis enforceable by the Company or one of its subsidiaries (as applicable) against the other party or parties thereto in accordance with its terms, valid subject to the Bankruptcy Exceptions, (ii) the Company or one of its subsidiaries (as applicable) has performed all material obligations required to be performed by it under each Real Property Lease and binding obligation is not (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder, (iii) to the Knowledge of the Company, no other party to any Real Property Lease is (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder, (iv) the delivery and execution of this Agreement and the consummation of the transactions contemplated hereunder do not require the consent of the landlord or any other person under any such Real Property Lease, (v) none of the Company or its subsidiaries have subleased, licensed or otherwise granted anyone the applicable Company Subsidiary. To right to use or occupy any Leased Property or any portion thereof or have collaterally assigned or granted any other security interest in any such leasehold estate or any interest therein and (vi) there is no condemnation or other proceeding in eminent domain pending or, to the knowledge Knowledge of the Company, neither threatened, affecting any portion of a Leased Property. Complete and accurate copies of each Real Property Lease have been delivered to Buyer and no such Real Property Lease has been modified, amended, waived or terminated since the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Leasedelivery.
(cd) Section 3.14(c3.13(d) of the Company Disclosure Letter sets forth a true, correct true and complete list list, as of all leasesthe date of this Agreement, subleases of each material easement, access right, encroachment agreement, right of way, crossing agreement and other occupancy agreements pursuant similar real property right to which the Company or any Company Subsidiary leases of its subsidiaries benefits from or subleases, as applicable, any Company Owned is a party (the “Real Property or Company Interests”, and the Owned Properties, Leased Properties and Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements theretoInterests, collectively, shall hereinafter be known as the “Company Third Party LeasesProperties”). The Company has heretofore made available With respect to Parent true the Real Property Interests, (i) such Real Property Interest is legal, valid, binding and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legalis enforceable by the Company or one of its subsidiaries (as applicable) against the other party or parties thereto in accordance with its terms, valid subject to the Bankruptcy Exceptions, (ii) the Company or one of its subsidiaries (as applicable) has performed all material obligations required to be performed by it under each Real Property Interest and binding obligation is not (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder, (iii) to the Knowledge of the Company, no other party to any Real Property Interest is (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder, (iv) the delivery and execution of this Agreement and the consummation of the transactions contemplated hereunder do not require the consent of the land owner or any other person under any such Real Property Interest, (v) none of the Company or its subsidiaries have leased, licensed or otherwise granted anyone the applicable Company Subsidiary. To right to use or occupy any Real Property Interest or any portion thereof or have collaterally assigned or granted any other security interest in any such Real Property Interest or any interest therein and (vi) there is no condemnation or other proceeding in eminent domain pending or, to the knowledge Knowledge of the Company, neither threatened, affecting any portion of a Real Property Interest.
(e) Except for the Company Properties, none of the Company or any of its subsidiaries occupy, are legally obligated for, have an interest in, or otherwise use, any land, buildings, facilities, locations or offices, and nor do they have any rights or obligations to acquire such interests.
(f) None of Seller, the Manager, any Member or any other affiliate of Seller (other than the Company Subsidiary is in default (which has not been previously curedand its subsidiaries) under any Company Third Party Lease, nor owns or has any notice interest in any of default been received (which has not been previously cured) the assets, properties or rights utilized by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or its subsidiaries in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms operation of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party LeaseBusiness as presently conducted.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Virgin Trains USA LLC)
Real and Personal Property. (a) Section 3.14(a3.16(a) of the Company Disclosure Letter Schedule sets forth a correct and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The description of all real property owned by the Company or a Company Subsidiary has good any of its Subsidiaries (together with all buildings, structures, improvements and marketable fee simple title to fixtures located thereon, and all Company easements and other rights and interests appurtenant thereto, “Owned Real Property, free and clear of any Liens, other than Permitted Liens”). With respect to each parcel of Company the Owned Real Property, except as set forth on Section 3.14(a3.16(a) of the Company Disclosure Letter, to the knowledge of the CompanySchedule, (i) the Company or one or more of its Subsidiaries (as the case may be) has good, valid and marketable fee simple title to such Owned Real Property, which are free and clear of Liens, except for Permitted Liens, (ii) there are no outstanding options, rights of first offer or rights of first refusal or other rights to purchase such parcel Owned Real Property or any portion thereof or interest interests therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, and (iii) all obligations of neither the Company nor any of its Subsidiaries is a party to any agreement or a Company Subsidiary with regard option to all applicable covenantspurchase, easements and restrictions affecting such parcel have been and are being performed acquire, dispose or sell any interest in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respectsreal property.
(b) Section 3.14(b3.16(b) of the Company Disclosure Letter Schedule sets forth a true, correct true and complete list as of the date hereof of all leases, leases and subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any of its Subsidiaries is a party as of the date hereof with respect to real property leased or subleased by the Company or any of its Subsidiaries requiring aggregate annual payments, to or on behalf of the landlord under such lease or sublease, as applicable, of more than $2 million (“Real Property Leases” and together with the address of such real property (the Owned Real Property, “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or Except as would not constitute a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company LeasesMaterial Adverse Effect, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge one of the Companyits Subsidiaries has valid and enforceable leasehold estates in or other rights to use all real property leased, neither the Company nor any Company Subsidiary is in default subleased, licensed or otherwise occupied (which has not been previously cured) under any Company Leasewhether as tenant, nor has any notice of default been received (which has not been previously curedsubtenant or pursuant to other occupancy arrangements) by the Company or any Company Subsidiary since January 1of its Subsidiaries, 2006free and clear of all Liens, except for any such default or notice of default, individually or in the aggregate, that has not had and Permitted Liens.
(c) Except as would not reasonably be expected to result in constitute a Company Material Adverse Effect. The terms , (i) the Company and its Subsidiaries have good and valid title to, or valid and enforceable rights to use under existing franchises, easements or licenses of, or valid and enforceable leasehold interests in, all of their material tangible personal properties and assets necessary to carry on their businesses as currently conducted, free and clear of all Liens, except for Permitted Liens, (ii) there are no condemnation or rezoning proceedings pending or, to the Knowledge of the Company Leases have not been modified in any material respectCompany, except threatened with respect to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date Real Property and (iii) none of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases of its Subsidiaries has received or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any delivered written notice of default been received (which has not been previously cured) by the Company any violation of any easement or reciprocal easement, covenants or restrictions of record affecting any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party LeaseReal Property.
(d) The Company Owned Except as set forth on Section 3.16(d) of the Seller Disclosure Schedule, as of the date hereof, there has been no base rent deferred under any Real Property and the Company Leased Real Property constitute all of the real property used by the Company Lease due to COVID-19 that is currently unpaid or any Company Subsidiary in the conduct of their businessoutstanding.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Real and Personal Property. (a) Section 3.14(a3.16(a) of the Company Parent Disclosure Letter sets forth a correct true and complete list of all Company Owned Real Property showing real property owned, leased or licensed by the address Bank or its Subsidiaries or otherwise occupied by the Bank or any of its Subsidiaries.
(b) The Bank and record titleholder thereof. The Company or a Company Subsidiary has good its Subsidiaries have good, valid and marketable fee simple title to all Company Owned Real Property, material real property owned by them free and clear of any all Liens, other than except Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to To the knowledge of Parent or the CompanyBank, (i) there are no outstanding options, rights of first offer or refusal or other preemptive rights of first refusal or purchase rights with respect to purchase any such parcel owned real property. There are no pending or, to Parent’s or the Bank’s knowledge, threatened, condemnation or similar proceedings affecting such owned real property or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respectsthereof.
(bc) Section 3.14(b) The Bank and its Subsidiaries have good, valid and marketable title to, or in the case of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real leased property and the address of such real leased tangible assets, a valid leasehold interest in, all material tangible personal property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leasesowned by them, in each case free and clear of any Liens, all Liens (other than Permitted Liens). Each of the Company Leases Bank and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are valid and binding in accordance with their respective terms and in full force and effect, and there is not under any such lease any material existing default by the Bank or such Subsidiary or, to the knowledge of Parent or the Bank, any other party thereto, or any event which with notice or lapse of time or both would constitute such a default by the Bank or such Subsidiary or to the knowledge of Parent or the Bank, such other party, except for any such noncompliance, default or failure to be in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of defaultthat would not, individually or in the aggregate, that has not had and would not reasonably be expected to result in have a Company Bank Material Adverse Effect. The terms of the Company Leases All rent and other sums and charges due and payable under such leases have not been modified paid in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) full. Section 3.14(c3.16(c) of the Company Parent Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary material leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force Bank and effect and constitutes a legal, valid and binding obligation its Subsidiaries as of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Leasehereof.
(d) The Company Owned Real Property and Except as set forth on Section 3.16(d) of the Company Leased Real Property constitute all Parent Disclosure Letter, other than (i) properties for which the Bank or any of its Subsidiaries is landlord or sublessor, (ii) properties the Bank or its Subsidiaries own as satisfaction on a debt previously contracted, or (iii) as set forth on Section 3.19 of the Parent Disclosure Letter, there are no Persons in possession of any portion of any of the real property used owned or leased by the Company Bank or any Company Subsidiary in its Subsidiaries other than the conduct of their business.
(e) The propertyBank or its Subsidiaries, plant and equipment of no Person other than the Company and the Company Bank or its Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient the right to permit use or occupy for any purpose any portion of real property owned or leased by the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practiceBank or its Subsidiaries.
Appears in 1 contract
Real and Personal Property. (ai) Section 3.14(a5H(i)(a) of the Company Disclosure Letter sets forth a correct and complete list the address of all Company each Owned Real Property showing Property. Except as set forth on Section 5H(i)(b) of the address and record titleholder thereof. The Company Disclosure Letter, the Company or a Company Subsidiary one of its Subsidiaries has good and marketable fee simple title to all Company each Owned Real Property, free and clear of any all Liens, except Permitted Encumbrances (other than Permitted LiensLiens created by Buyer). With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a5H(i)(c) of the Company Disclosure Letter, : (a) neither the Company nor any of its Subsidiaries has leased or otherwise granted to any Person the knowledge of the Company, right to use or occupy such Owned Real Property or any portion thereof; and (ib) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel Owned Real Property or any portion thereof or interest therein, thereof.
(ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b5H(ii)(a) of the Company Disclosure Letter sets forth the address of each Leased Real Property, and a true, correct true and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has one of its Subsidiaries owns good and valid title leasehold interests in and to all the leasehold estate created under Leases. Except for Permitted Encumbrances, there exist no Liens adversely affecting the respective use of the Leased Real Property by the Company Leases, in each case free and clear or any of its Subsidiaries. The Company has not received written notice of any Liens, other than Permitted Liensmaterial default under any of the Leases which has not been cured or waived. Each Except as set forth on Section 5H(ii)(b) of the Company Leases Disclosure Letter, no event has occurred which would allow the other party thereto to terminate or accelerate performance under or otherwise modify (including upon the giving of notice or the passage of time) any of such Leases. The Company or one of its Subsidiaries have the right to quiet enjoyment of the Leased Real Property for the full term of the applicable Lease to the extent provided in such Lease. Each Lease is in full force and effect and constitutes a legal, valid and binding obligation of the Company and its Subsidiaries, as applicable, enforceable against the Company and its Subsidiaries in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the applicable enforcement of creditors’ rights in general, or by general principles of equity. There are no outstanding options or rights of any Person to acquire the Company’s or any of its Subsidiary’s leasehold interests in any such Leased Real Property. All Leases as set forth in Section 5H(ii)(c) of the Company SubsidiaryDisclosure Letter are in full force and effect, and neither the Company nor any Subsidiary of the Company, as applicable, is in material default under any provision of such Leases, and, to the knowledge of the Company, no condition exists which (with notice or lapse of time or both) could constitute a material default thereunder in each case. True and complete copies of all Leases have been made available for inspection by Buyer prior to the date of this Agreement.
(iii) Except as set forth on Section 5H(iii) of the Company Disclosure Letter, neither the Company nor any Subsidiary of the Company has received written notice of public improvements, annexation, special assessments, zoning or subdivision changes, or other claims or charges with respect to any material part of the Real Property. To the knowledge of the Company, neither each use of the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) Real Property by the Company or any Company Subsidiary since January 1and its Subsidiaries is and has been valid, 2006, except for any such default or notice of default, individually or permitted and conforming uses in accordance with the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms current zoning classification of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to ParentReal Property, and neither there are no outstanding variances or special use permits affecting the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel Real Property or terminate any Company Lease prior to the stated maturity date of such Company Leaseits uses.
(civ) Except (a) as set forth on Section 3.14(c5H(iv) of the Company Disclosure Letter sets Letter, (b) as set forth a trueon the Latest Balance Sheet, correct and complete list of all leases(c) for Permitted Encumbrances, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleasesone of its Subsidiaries has good title to all of the assets reflected on the Latest Balance Sheet, as applicableexcept those disposed of by it since the date of the Latest Balance Sheet, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications free and other supplements thereto, collectively, the “Company Third Party Leases”)clear of all Liens. The Company and each of its Subsidiaries leases, licenses, owns or otherwise has heretofore made available the right to Parent true use all assets used in and complete copies of all Company Third Party Leases. Each material to the operation of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party LeaseBusiness as currently conducted.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Real and Personal Property. (a) Section 3.14(a6.13(a) of the Company Disclosure Letter sets forth a correct true and complete list list, as of the date hereof, of all Company Owned material NA Real Property showing that is owned by Parent or any Parent Subsidiary and that is used or occupied in the address and record titleholder thereof. The Company current operation or a Company Subsidiary has good and marketable fee simple title to all Company conduct of the North American Business (the “Owned Real Property”), free and clear including the address thereof. There are no condemnation or eminent domain proceedings pending or, to the Knowledge of any LiensParent, other than Permitted Liens. With threatened in writing with respect to each parcel of Company the Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there . There are no outstanding options, rights of first offer options to purchase or lease or rights of first refusal to purchase such parcel any of the Owned Real Property or any portion portions thereof or interests therein.
(b) Section 6.13(b) of the Disclosure Letter sets forth a true and complete list, as of the date hereof, of all material NA Real Property in which Parent or any Parent Subsidiary holds a leasehold interest thereinor an occupancy right and that is used or occupied in the current operation or conduct of the North American Business (the “Leased Real Property” and, together with the Owned Real Property, the “Real Property”). Parent has made available to Purchaser a true and complete copy of each lease, sublease, license or occupancy agreement pursuant to which such rights have been granted, including all amendments, modifications and other supplements thereto underlying the Leased Real Property. With respect to each Leased Real Property:
(i) there are no condemnation or eminent domain proceedings pending or, to the Knowledge of Parent, threatened in writing; and
(ii) to the Knowledge of Parent, there is are no condemnation outstanding options to purchase or other proceeding in eminent domain, pending or threatened, affecting such parcel rights of first refusal to purchase any of the Leased Real Property or any portion portions thereof or interest thereininterests therein or contracts relating to the right of a third party to sublease or occupy any Leased Real Property or any portions thereof, that in each case, has been or would reasonably be expected to be material to the Parent and the Parent Subsidiaries, taken as a whole.
(iiic) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have The Real Property (i) has been and are being performed maintained in all material respects in a proper accordance with normal industry practice, (ii) is in good operating condition and timely manner by the Company or a Company Subsidiary repair (subject to normal wear and tear) in all material respects and (iviii) such parcel is suitable for the purposes for which it is presently used. The other tangible NA Assets are in compliance with all applicable Laws good condition, reasonable wear and tear excepted, in all material respects.
(bd) Section 3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property Parent and the address of such real property (Parent Subsidiaries have, in all material respects, good and valid fee simple title to the “Company Owned Real Property, good, valid and enforceable leasehold interests in the Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good Property and valid title to the leasehold estate created under other tangible assets included in the respective Company LeasesNA Assets, in each case free and clear of any all Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for (i) Liens securing indebtedness reflected in the Financial Statements, (ii) Liens consisting of zoning, building or land use Laws, planning restrictions or permits, which are not violated by the current use and occupation of such Real Property, (iii) easements, rights-of-way, encroachments, covenants and other restrictions or limitations on the use or occupancy of real property or irregularities in title thereto which do not materially impair the use, occupancy, value or operation of such property as it is presently used in connection with the North American Business, (iv) Liens for current Taxes, assessments or governmental charges or levies on property not yet due and payable or which are being contested in good faith by appropriate proceedings in accordance with applicable Laws and for which appropriate reserves have been established in accordance with IFRS or GAAP, as the context requires, (v) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business or by operation of Law for amounts not yet delinquent or the amount or validity of which are being contested in good faith by appropriate proceedings and, in each case, for which appropriate reserves have been established in accordance with IFRS or GAAP, as the context requires, (vi) Liens arising pursuant to applicable minimum pension standards legislation for amounts not yet due and payable, (vii) Liens which have been placed by any developer, landlord or other third party on any Leased Real Property and subordination or similar agreements relating thereto that do not impair in any material respect the occupancy, operation or use of such default Leased Real Property in the North American Business as currently conducted, (viii) Liens discharged at or notice of defaultprior to Closing and (ix) Liens which would not, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms materially and adversely affect the use, occupancy, operation or value of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth assets in the documents previously made available to Parent, and neither North American Business as currently conducted (the Company nor any of the Company Subsidiaries is items in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
clauses (ci) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person through (together with any amendments, modifications and other supplements theretoix), collectively, the “Company Third Party LeasesPermitted Liens”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Real and Personal Property. Attached hereto as Schedule 6.16 is an accurate list, including substantially complete descriptions as of the Audited Balance Sheet Date, of all the real and personal property excluding aircrafts or aircraft parts (awhich in the case of personal property had an original cost in excess of $25,000) Section 3.14(aowned or where the Company or any NSJ Company is a lessee, including true and correct copies of leases for equipment and properties on which are situated buildings, warehouses and other structures used in the operation of the busi ness of the Company or any NSJ Company and including an indication as to which assets were formerly owned by any Stockholder or affiliate (which term, as used herein, shall have the meaning ascribed thereto in Rule 144(a)(1) promulgated under the Securities Act of 1933, as amended (the "Securities Act")) of the Company Disclosure Letter sets forth a correct and complete list of all Company Owned Real Property showing the address and record titleholder thereofor any NSJ Company. The Company or a Company Subsidiary has good and marketable fee simple title to all Company Owned Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except Except as set forth on Section 3.14(a) Schedule 6.16, all of the Company's and each NSJ Company's leasehold improvements, facilities, equipment and other material items of tangible property and assets are in good operating condition and repair, subject to normal wear and maintenance, are usable in the regular and ordinary course of business and conform to all applicable laws, ordinances, codes, rules and regulations, and Authorizations relating to their construction, use and operation. All leases set forth on Schedule 6.16 have been duly authorized, executed and delivered and constitute the legal, valid and binding obligations of the Company Disclosure Letterand each NSJ Company, as applicable, and, to the knowledge of the Companyany Individual Stockholder, (i) there are no outstanding options, rights of first offer or rights of first refusal other party to purchase any such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel lease is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b) of default thereunder and such leases constitute the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date obligations of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”)parties. The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property All fixed assets used by the Company or any NSJ Company Subsidiary in the conduct operation of their business.
(e) its business are either owned by the Company or such NSJ Company or leased under an agreement set forth on Schedule 6.16. The propertyCompany, plant the NSJ Companies or the Stockholders have heretofore delivered to UniCapital copies of any title reports and equipment title insurance policies received or held by the Company or any NSJ Company. The Company and the Stockholders have indicated on Schedule 6.16 a summary description of all plans or projects involving the opening of new operations, expansion of any existing operations or the acquisition of any real property or existing business to which management of the Company or any NSJ Company has devoted any significant effort or expenditure in the two-year period prior to the date of this Agreement which have not been terminated or abandoned and which, if pursued by the Company Subsidiaries has been maintained in reasonable operating condition and repairor such NSJ Company, ordinary wear and tear excepted, and is in all material respects sufficient would require additional expenditures of significant efforts or capital other than with respect to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course acquisition of business consistent with past practiceaircraft or aircraft parts.
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Real and Personal Property. (a) The Company and its Subsidiaries do not own any real property.
(b) Section 3.14(a3.17(b) of the Company Disclosure Letter sets forth a correct complete and complete accurate list of all Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company Owned Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letterdate of this Agreement of each lease, to the knowledge of the Companysublease, license or similar use and occupancy Contract (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with including any amendments, extensions and modifications and other supplements thereto, collectivelyeach, the a “Company Leases”Leaseˮ) pursuant to which the Company or any Company Subsidiary of its Subsidiaries leases, subleases or otherwise uses or occupies any real property and the address of such real property from any other Person (whether as a tenant, subtenant or pursuant to other occupancy arrangements) (collectively, the “Company Leased Real Property”Propertyˮ). The Company has heretofore made available to Parent true a true, correct and complete copies copy of all each such Lease to date.
(c) Except as where such failure would not, individually or in the aggregate, materially impair or be reasonably likely to materially impair the continued use and operations of the Company Leases. The Leased Real Property to which they relate in the conduct of the business of the Company or a and its Subsidiaries as presently conducted, (i) the Company Subsidiary has good and its Subsidiaries have valid title to leasehold interests under each of the leasehold estate created under the respective Company Leases, in each case free and clear of any all Liens, other than except for Permitted Liens. Each Liens and (ii) the Company and its Subsidiaries enjoy peaceful and undisturbed possession under all of the Leases for any Company Leased Real Property.
(d) Except as where such failure would not, individually or in the aggregate, materially impair or be reasonably likely to materially impair the continued use and operations of the Company Leases Leased Real Property to which they relate in the conduct of the business of the Company and its Subsidiaries as presently conducted, each Lease for any Company Leased Real Property is in full force and effect and constitutes is a legal, valid and binding obligation of the Company or any of its Subsidiaries that is a party thereto, as applicable, and to the applicable Company Subsidiary. To the knowledge Knowledge of the Company, neither the other parties thereto.
(e) As of the date hereof, since January 1, 2015, none of the Company nor or any of its Subsidiaries has received any communication from, or given any communication to, any other party to a Lease for any Company Subsidiary Leased Real Property or any lender, alleging that the Company, any of its Subsidiaries or such other party, as the case may be, is in default (which has not been previously cured) under any Company such Lease, nor and to the Knowledge of the Company, no other counterparty is in default under such Lease. No event has any occurred and no condition exists, which with the giving of notice or the passage of time, or both, will constitute a default been received (which has not been previously cured) under a Lease by the Company or any Company Subsidiary since January 1of its Subsidiaries, 2006or, except for to the Knowledge of the Company, any counterparty under such default or notice of defaultLease, that would, individually or in the aggregate, that has not had materially impair or be reasonably likely to materially impair the continued use and would not reasonably be expected to result in a Company Material Adverse Effect. The terms operations of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, which they relate in the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies conduct of all Company Third Party Leases. Each the business of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default its Subsidiaries as presently conducted.
(which has not been previously curedf) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any Except as where such default or notice of default thatfailure would not, individually or in the aggregate, has not had materially impair or be reasonably likely to materially impair the continued use and would not reasonably be expected to result in a Company Material Adverse Effect. The terms operations of the Company Third Party Leases have not been modified in any material respect, except Leased Real Property to the extent that such modifications are set forth which they relate in the documents previously made available to Parentconduct of the business of the Company and its Subsidiaries as presently conducted, (i) no Person, other than the Company or a Subsidiary of the Company, possesses, uses or occupies all or any portion of any Company Leased Real Property and (ii) neither the Company nor any Subsidiary of the Company Subsidiaries is in negotiations a party to any agreement, right of first offer, right of first refusal or option with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior respect to the stated maturity purchase or sale of any real property or interest therein. As of the date hereof, there are no pending or, to the Knowledge of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company, threatened Proceedings to take all or any portion of the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in the conduct of their businesslieu thereof.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Sources: Merger Agreement (Stryker Corp)
Real and Personal Property. (a) Section 3.14(a) of the Company Disclosure Letter sets forth a correct and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The Company or a Group Company Subsidiary has good and marketable valid indefeasible fee simple title to to, or in the case of Leased Real Properties, a valid leasehold interest in, all Company of its Owned Real Property or Leased Real Property and the Tangible Property, free and clear of any Liens, all Liens other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure LetterNo condemnation Action is pending or, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal threatened with respect to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company Owned Real Property or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respectsLeased Real Property.
(b) Section 3.14(bSchedule 3.19(b) of the Company Disclosure Letter Schedule sets forth the address of each Owned Real Property. Except as set forth on Schedule 3.19(b) of the Company Disclosure Schedule, no Group Company has subleased, licensed or otherwise granted any Person the right to use or occupy or collaterally assigned or granted any security interest in any such Owned Real Property or any portion thereof other than Permitted Liens. None of the buildings on the Owned Real Property are in need of maintenance or repairs, ordinary wear and tear and maintenance excepted, that would be material to the Group Companies, taken as a truewhole. No Group Company is party to any contract or option to purchase any real property or interest in real property. The present use of the Owned Real Property, correct or any portion thereof, and the improvements erected on the Owned Real Property, do not breach, violate or conflict with in any material respect any Laws, covenants, conditions or restrictions or other agreements of record applicable thereto and binding on a Group Company or the Owned Real Property.
(c) Schedule 3.19(c) of the Company Disclosure Schedule sets forth the address of each Leased Real Property, and a true and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of Leases for each such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent and Merger Sub a true and complete copies copy of each such Lease document (including all Company Leasesamendments, extensions, renewals, guaranties and other agreements with respect thereto). The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, Except as set forth in each case free and clear of any Liens, other than Permitted Liens. Each Schedule 3.19(c) of the Company Leases Disclosure Schedule, with respect to each of the Leases: (i) such Lease is a legal, valid, and binding obligation, and is enforceable against the applicable Group Company and, to the Company’s knowledge, the other party thereto and is in full force and effect effect, subject to General Enforceability Exceptions; (ii) to the Company’s knowledge, no Group Company is in breach or default under such Lease and constitutes no event has occurred and no circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a legalbreach or default, valid except to the extent such breach or default has not been and binding obligation would not reasonably be expected to be material to the Group Companies, taken as a whole, (iii) no Group Company has received written notice from any other party to a Lease that such other party intends to terminate, not renew, or renegotiate in any material respect the terms of any such Lease and (iv) except as set forth in Schedule 3.19(c) of the Company Disclosure Schedule, the Group Companies have not subleased, licensed or otherwise granted any Person the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company right to use or occupy such Leased Real Property or any Company Subsidiary since January 1portion thereof.
(d) The facilities, 2006machinery, except for any such default or notice of defaultequipment, furniture, leasehold improvements, fixtures, vehicles, structures, related capitalized items and other tangible property that are, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person Group Company (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party LeasesTangible Property”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is ) are in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable good operating condition and repair, ordinary wear and tear excepted, subject to continued repair and is replacement in all material respects sufficient accordance with the Ordinary Course of Business, are suitable for their intended use, and are adequate to permit support the Company business of the Group Companies. Since January 1, 2020, the Tangible Property has been maintained and the Company Subsidiaries to conduct their operations repaired by a qualified Person and in accordance with prudent industry standards. Since January 1, 2020, there has not been any significant interruption in the ordinary course operations of the business consistent with past practiceof the Group Companies due to inadequate maintenance of the Tangible Property.
Appears in 1 contract
Sources: Merger Agreement (Cactus, Inc.)
Real and Personal Property. (a) Section 3.14(a3.16(a) of the Company Disclosure Letter Schedule sets forth a correct true and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company Owned Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge date hereof of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, all real properties (iiby name and location) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner owned by the Company or a Company Subsidiary any of its subsidiaries as of the date hereof (the “Owned Real Property”) and (ivii) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements subleases, licenses or similar agreement (together with any amendments, modifications and other supplements thereto, collectively, the “Company Real Property Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any of its Subsidiaries is a party as of the date hereof with respect to real property leased, licensed, occupied or used by the Company or any of its Subsidiaries (“Leased Real Property”, and collectively with the address of such real property (Owned Real Property, the “Company Leased Real Property”). The Except as would not constitute a Company has heretofore made available to Parent true and complete copies of all Company Leases. The Material Adverse Effect, the Company or a Company Subsidiary one of its Subsidiaries owns and has good good, marketable and valid title to the leasehold estate created under the respective Company Leases, in each case free all Owned Real Property and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes holds a legal, has valid and binding obligation of the Company enforceable leasehold estates in or the applicable Company Subsidiary. To the knowledge of the Companyother rights to use all Leased Real Property (whether as tenant, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously curedsubtenant or pursuant to other occupancy arrangements) by the Company or any Company Subsidiary since January 1of its Subsidiaries, 2006free and clear of all Liens, except for Permitted Liens. None of the Company or its Subsidiaries or, to the Knowledge of the Company, any other Person, is in breach or violation of, or default under, any Real Property Lease and no event has occurred and no circumstance exists which, if not remedied, would result in such a breach, violation or default (with or without notice or lapse of defaulttime, individually or both). All buildings, structures, improvements, and fixtures located on the Real Property have been maintained in accordance with normal industry practice, are in good operating condition and repair without material structural or mechanical defect, and are suitable for the aggregatepurposes for which they are currently used, that has not had and except as would not reasonably be expected to result in have a Company Material Adverse Effect. The terms There are no parties other than the Company or its Subsidiaries in possession of the Real Property. There are no pending or, to the Knowledge of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicableits Subsidiaries, any Company Owned Real Property threatened condemnation, eminent domain or Company Leased administrative actions affecting any Real Property or any portion thereof to any Person thereof.
(together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously curedb) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and Except as would not reasonably be expected to result in constitute a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company its Subsidiaries has been maintained in reasonable operating condition have good and repairvalid title to, ordinary wear or valid and tear exceptedenforceable rights to use under existing franchises, easements or licenses of, or valid and is in enforceable leasehold interests in, all of their material respects sufficient tangible personal properties and assets necessary to permit the Company carry on their businesses as currently conducted, free and the Company Subsidiaries to conduct their operations in the ordinary course clear of business consistent with past practiceall Liens, except for Permitted Liens.
Appears in 1 contract
Sources: Merger Agreement (ORBCOMM Inc.)
Real and Personal Property. The Company does not own any real property. Schedule 4.9A attached hereto (the “Real Properties Schedule”) lists the common street addresses of all real properties and interests therein leased by the Company, and Schedule 4.9B attached hereto (the “Real Properties Encumbrances Schedule”) lists the mortgages, pledges, liens or security interests affecting such real properties and interests therein. Except as set forth in Schedule 4.9A or Schedule 4.9B:
(a) Section 3.14(a) the Company has a valid leasehold estate to each of the Company Disclosure Letter sets forth a correct respective real properties listed in the Real Properties Schedule and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company Owned Real Property, free tangible personal properties and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except assets shown as set forth on Section 3.14(a) of owned by the Company Disclosure Letter, on its books and records (except for properties and assets acquired under installment purchase contracts or held pursuant to the knowledge leases disclosed in the Contracts Schedule or not required to be disclosed in such Schedule), subject to easements, conditions and restrictions of the Companyrecord, (i) there are no outstanding optionstaxes not yet due and payable, rights of first offer way, zoning regulations and occupancy permit requirements and matters disclosed on the Real Properties Encumbrances Schedule, which are not material, individually or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.aggregate;
(b) Section 3.14(b) with respect to each leased and subleased parcel of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to real property in which the Company has a leasehold or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property subleasehold interest as set forth in Schedule 4.9A (the “Company Leased Real PropertyLeases”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes the Company holds a valid and existing leasehold or subleasehold interest under each of the Leases. Sellers have delivered to Buyer complete and accurate copies of each of the Leases including all amendments and modifications thereto. With respect to each Lease: (i) the Lease is legal, valid valid, binding, enforceable and binding obligation in full force and effect in accordance with and subject to its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and limitations on the availability of equitable remedies and other matters affecting the landlord’s interests; (ii) neither the Company or nor, to the applicable Company Subsidiary. To the knowledge Knowledge of the Company, neither any other party to the Company nor any Company Subsidiary Lease, is in default (which breach or default, and no event has not been previously cured) under any Company Leaseoccurred which, nor has any with notice or lapse of default been received (which has not been previously cured) by the Company time, would constitute such a breach or any Company Subsidiary since January 1, 2006, except for any such default or notice of defaultpermit termination, individually modification or in acceleration under the aggregate, that Lease; (iii) the Lease has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth disclosed by the documents delivered to Buyer and there are no disputes between the parties to the Lease; (iv) the Company has not assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in the documents previously made available Lease; and (v) the transactions contemplated by this Agreement do not require the consent of any party to Parentsuch Lease (or if such consent is required, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord Sellers shall deliver such consent to cancel or terminate any Company Lease Buyer prior to the stated maturity date of such Company LeaseClosing).
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list All components of all leasesbuildings, subleases equipment, structures and other occupancy agreements pursuant to which improvements included within the Company or any Company Subsidiary leases or subleases, real property as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person set forth in Schedule 4.9A (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party LeasesImprovements”). The Company has heretofore made available ) are in good repair and in good condition to Parent true and complete copies of all Company Third Party Leases. Each of operate the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company SubsidiaryCompany’s businesses as currently operated. To the knowledge Company’s Knowledge, there are no facts or conditions affecting any of the Company, neither the Company nor any Company Subsidiary is in default (Improvements which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default thatwould, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified interfere in any material respectrespect with the use, except occupancy or operation thereof as currently used, occupied or operated. All water, gas, electrical, steam, compressed air, telecommunication, sanitary and storm sewage lines and systems and other similar systems, as installed and operating, are sufficient to enable the extent that such modifications are real properties set forth in Schedule 4.9A to be used and operated in the documents previously made available manner currently being used and operated. Each Improvement has direct access to Parent, a public street adjoining the real properties on which such Improvement is situated over the driveways and neither accessways currently being used in connection with the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date use and operation of such Company Third Party Lease.Improvement and no existing accessway crosses or encroaches upon any property or property interest. No Improvement or portion thereof is dependent for its access, operation or utility on any land, building or other improvement not included in the real properties set forth in Schedule 4.9A.
(d) The Company Owned Real Property and Except as set forth on Schedule 4.9B, the Company Leased Real Property constitute has good title to, or a valid leasehold interest in, all real and personal property and assets used in connection with the operation of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment businesses of the Company Company, free and the Company Subsidiaries has been maintained clear of all mortgages, pledges, security interests, encumbrances, charges or other liens (other than Permitted Liens) and such property and assets are in reasonable operating good working condition and repair, ordinary subject to normal wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practicetear.
Appears in 1 contract
Sources: Stock Purchase Agreement (Commercial Vehicle Group, Inc.)
Real and Personal Property. (a) Section 3.14(a) of the Company Disclosure Letter sets forth a correct and complete list of all Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary owns no real property and has good and marketable fee simple title to all Company Owned Real Property, free and clear of never owned any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respectsreal property.
(b) Section 3.14(b3.18(b) of the Company Disclosure Letter sets forth a true, correct and complete list of Schedule lists all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant material real property leases to which the Company or any Company Subsidiary leasesis a party as of the Execution Date, subleases or otherwise occupies any real property and each amendment thereto as of the address of such real property Effective Time (the “Company Leases” and the real property subject to such Leases, the “Leased Real Property”). The Company has heretofore made available to Parent in the Data Room true and complete copies of the Leases.
(i) The Leases are in full force and effect and are valid and effective in accordance with their respective terms, (ii) there is not, under any Lease, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default) by the Company or, to the Company’s Knowledge, any other party thereto, and (iii) the Leases permit the current occupation and use of the applicable Leased Real Property by the Company. Except as set forth in Section 3.18(b) of the Company Disclosure Schedule, the Leased Real Property comprises all of the material real property occupied or otherwise used by the Company Leasesas of the Execution Date. As of the Execution Date, the Company has not entered into any subleases for any portion of the Leased Real Property, nor has the Company assigned, licensed or otherwise conveyed to any Person any right to use all or any part of the Leased Real Property. As of the Execution Date, the Company has not materially modified or allowed the material modification of any Leases without the prior written consent of Parent. The Company or a has obtained all necessary certificates and licenses necessary for the current use and operation of the Leased Real Property, which as of the Execution Date, (x) are in full force
(i) The Leased Real Property and the current use of the Leased Real Property pursuant to the Leases comply in all material respects with applicable Law and (ii) no consents of any party to any Lease are required in connection with the transaction contemplated by this Agreement.
(c) (i) The Company Subsidiary has good and valid marketable title to or holds under valid and enforceable leasehold interest in the leasehold estate created under the respective Company LeasesLeased Real Property and all material tangible personal property, in each case free and clear of any Liens, other than except for Permitted Liens. Each , necessary for the conduct of the business of the Company Leases is in full force and effect and constitutes a legalas currently conducted, valid and binding obligation (ii) such tangible personal property of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default sufficiently good operating condition (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient tear) to permit allow the Company and the Company Subsidiaries to conduct their operations operate in the ordinary course of business consistent with past practice, and (iii) all facilities, equipment, fixtures and other tangible properties owned, leased or used by the Company are in good operating condition and repair and reasonably fit and usable for the purposes for which they are being used, subject to normal wear and tear.
Appears in 1 contract
Sources: Merger Agreement (LENSAR, Inc.)
Real and Personal Property. (a) Section 3.14(aSchedule 3.9(a) contains an accurate and complete list, as of the Company Disclosure Letter sets forth a correct and complete list date hereof, of all Company Owned Real Property showing the address real property leases and record titleholder thereof. The Company subleases or a Company Subsidiary has good and marketable fee simple title to real property licenses, including all Company Owned Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements theretothereto to the extent currently in effect, collectivelyused by the Company Group or to which a member of the Company Group is a party as lessee (the “Real Property Leases,” and the properties leased thereunder, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title leasehold interests relating to the leasehold estate created under the respective Company Leases, in each case Real Property Leases are free and clear of any all Liens, other than Permitted Liens. Each of the Company Real Property Leases is in full force and effect and constitutes a legal, valid and binding obligation on, and enforceable against, the Company or one of its Subsidiaries, as applicable, and, to the Knowledge of the Company, on and against the other party or parties thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and none of the Company or any of its Subsidiaries have given or received any written notice of material default under any Real Property Lease which default is continuing under said Real Property Lease and, to the Knowledge of the Company Group, no counterparty thereto is in default and no event or circumstance exists that would constitute a default thereunder. There are no written or oral subleases, licenses, concessions or other similar contracts granting to any Person other than the Company or any of its Subsidiaries the right to use or occupy any Leased Real Property.
(b) Schedule 3.9(b) contains an accurate and complete list, as of the date hereof, of all real property owned by a member of the Company Group (the “Owned Real Property”). The applicable members of the Company SubsidiaryGroup have good and valid fee simple title to all Owned Real Property, free and clear of all Liens, other than Permitted Liens. To None of the knowledge Owned Real Property is subject to any right or option of any other Person to purchase or lease an interest in such Owned Real Property, and no condemnation or rezoning proceeding is pending or, to the Knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any threatened with respect to such default or notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company LeaseOwned Real Property.
(c) Section 3.14(c) of The Company Group collectively own or hold under valid leases or otherwise has the Company Disclosure Letter sets forth a truevalid and lawful right to use, correct and complete list of all leasesmaterial machinery, subleases equipment and other occupancy agreements pursuant to which personal property (excluding, for the Company or any Company Subsidiary leases or subleasesavoidance of doubt, as applicable, any Company Owned Real Intellectual Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously curedrights) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except necessary for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is businesses in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations substantially in the ordinary course same manner as currently conducted, and none of business consistent with past practicesuch properties are subject to any Liens except for Liens identified on Schedule 3.9(c) and Permitted Liens.
Appears in 1 contract
Real and Personal Property. (a) The Company does not own any real property and as of the date of this Agreement, the Company does not have any contract to acquire any fee interest in real property. Section 3.14(a3.16(a) of the Company Disclosure Letter Schedule sets forth (i) a list of the addresses of all real property leased or subleased by the Company and its Subsidiaries (the “Leased Real Property”) and (ii) a true and correct and complete list of all Company Owned Leases. The Leased Real Property showing constitutes all of the address real property leased, subleased or occupied by the Company and record titleholder thereof. its Subsidiaries to operate its business and there are no other lease, sublease, license, use or occupancy agreements for real property to which any of the Company or its Subsidiaries is bound.
(b) The Company or a Company Subsidiary one of its Subsidiaries has good and marketable fee simple title valid leasehold estates in or other rights to use all Company Owned Leased Real Property, free and clear of any all Liens, other than except for Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letter, to the knowledge of the Company, (i) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(bc) Section 3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or Except as would not constitute a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company LeasesMaterial Adverse Effect, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company all Leases is are in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Companyeffect, neither the Company nor any Company Subsidiary of its Subsidiaries that is in default (which a party to such Lease has not been previously cured) under received or given any Company Lease, nor has any written notice of any default been received (thereunder which has not been previously cured) by remains uncured as of the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default, individually or in the aggregate, that has not had and date hereof. Except as would not reasonably be expected to result in constitute a Company Material Adverse Effect. The terms of the Company Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of its Subsidiaries party thereto (as the case may be) or, to the Knowledge of the Company, any Person other than the Company Subsidiaries or its Subsidiary is in negotiations with breach of, or default under, any landlord to cancel or terminate provisions of any Company Lease prior nor has, to the stated maturity date Knowledge of the Company, any event occurred which, with notice or the passage of time, or both, would give rise to such Company Leasea default or breach, result in a loss of any rights or result in the creation of any Lien (except for Permitted Liens) thereunder or pursuant thereto.
(cd) Except as would not constitute a Company Material Adverse Effect or as set forth on Section 3.14(c3.16(d) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the CompanySchedule, neither the Company nor any Company Subsidiary is in default (which of its Subsidiaries party to any Lease has not been previously cured) under any Company Third Party assigned such Lease, nor has sublet any notice part of default been received (which has not been previously curedthe premises covered thereby or transferred, conveyed, mortgaged, deeded in trust, or encumbered any interest in the leasehold estate or any of its rights under such Lease. Except as set forth on Section 3.16(d) by of the Company Disclosure Schedule and except for matters that would constitute Permitted Liens, none of the Leased Real Property is subject to any leases, subleases, licenses, occupancy agreements, options, rights, tenancies of any kind or other agreements or arrangements, other than the Leases, which grant to any Person (other than the Company and its Subsidiaries) the right to use or occupy all or any Company Subsidiary since January 1portion of the Leased Real Property whether as lessees, 2006sublessees, except for any such default occupants, licensees or notice of default that, individually or in the aggregate, has not had and otherwise.
(e) Except as would not reasonably be expected to result in constitute a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct of their business.
(e) The property, plant and equipment of the Company and the Company its Subsidiaries has been maintained in reasonable operating condition have valid title to, or valid and repairenforceable rights to use under existing franchises, ordinary wear easements or licenses of, or valid and tear exceptedenforceable leasehold interests in, all of their material tangible personal properties and is in assets necessary to carry on their businesses as currently conducted, free and clear of all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practiceLiens, except for Permitted Liens.
Appears in 1 contract
Sources: Merger Agreement (Xo Group Inc.)
Real and Personal Property. (a) Section 3.14(aSchedule 4.10(a) of the Company Disclosure Letter sets forth a correct and complete list of all (i) the real property owned by the Company or any of its Subsidiaries (the “Owned Real Property”) and (ii) the real property leased by the Company or any of its Subsidiaries (the “Leased Real Property”). All leases relating to Leased Real Property showing are identified on Schedule 4.10(a) (each a “Lease” and collectively, the address and record titleholder thereof“Leases”). The Company or a Company Subsidiary has good made available to Parent and marketable fee simple title to Merger Sub accurate and complete copies of all Company Owned Real Property, free and clear of any Liens, other than Permitted Liensthe Leases. With respect to each parcel of Company the Leased Real Property and Owned Real Property, except as set forth on Section 3.14(aSchedule 4.10(a) of could not reasonably be expected to have a Company Material Adverse Effect:
(i) the Company Disclosure Letter, to the knowledge or a Subsidiary of the Company, as applicable, have valid and enforceable leasehold interests to the leasehold estate in the Leased Real Property granted to the Company or such Subsidiary, as applicable, pursuant to each pertinent Lease, except as such enforceability may be limited by General Enforceability Exceptions;
(iii) each of the Leases has been duly authorized and executed by the Company or such Subsidiary, as applicable, and is in full force and effect;
(iii) neither the Company nor such Subsidiary is in default under any of the Leases, nor, to the Company’s Knowledge, has any event occurred which, with notice or the lapse of time, or both, would give rise to a default by the Company or such Subsidiary, as applicable;
(iv) to the Company’s Knowledge no landlord under the Leases is in default under the Leases and no event has occurred that, with notice or the lapse of time, or both, would give rise to a default by any landlord;
(v) there are no outstanding options, rights of first offer or rights of first refusal to purchase such parcel any Owned Real Property or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.;
(bvi) Section 3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, modifications and other supplements thereto, collectively, the “Company Leases”) pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise occupies any real property and the address of such real property (the “Company Leased Real Property”). The Company has heretofore made available to Parent true and complete copies of all Company Leases. The Company or a Company Subsidiary has good and valid title to the leasehold estate created under the respective Company Leases, in each case free and clear of any Liens, other than Permitted Liens. Each of the Company Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge Subsidiary is in peaceful and undisturbed possession of the CompanyOwned Real Property and the Leased Real Property, and there are no contractual or legal restrictions that preclude or restrict the ability of the Company or such Subsidiary to use such Owned Real Property and Leased Real Property for the purposes for which it is currently being used;
(vii) neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under subleased, licensed or otherwise granted to any Company LeasePerson the right to use or occupy any portion of the Owned Real Property or Leased Real Property, nor has any notice and none of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or has received written notice of default, individually or in the aggregate, that has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms any claim of the Company Leases have not been modified in any material respect, except Person to the extent that such modifications are contrary. Except as set forth in on Schedule 4.10(a) and Permitted Exceptions, there are no contracts or agreements outstanding for the documents previously made available to Parentsale, and neither the Company nor exchange, Encumbrance, lease or transfer of any of the Company Subsidiaries is in negotiations with any landlord to cancel or terminate any Company Lease prior to the stated maturity date of such Company Lease.
(c) Section 3.14(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property Property, or any portion thereof to any Person thereof;
(together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each viii) use of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary in the conduct United States for the various purposes for which it is presently being used is permitted as of their business.right under applicable urbanization, zoning and other land use laws and is not subject to “permitted non-conforming” use or structure classifications;
(eix) The propertyall buildings, plant structures, fixtures and equipment of other improvements included in the Company and Owned Real Property or Leased Real Property (collectively, the Company Subsidiaries has been maintained “Improvements”) are in material compliance with all applicable laws; and
(x) the Improvements are in commercially reasonable operating condition and repair, ordinary wear and tear exceptedexcepted and with due regard to the age of such Improvements, and is are suitable for the purposes for which they are being used and currently planned to be used.
(b) Except as set forth on Schedule 4.10(b) or as disclosed in all material respects sufficient the Most Recent Balance Sheet, the Company or one of its Subsidiaries has good and marketable fee simple title to permit the Owned Real Property and valid leasehold interests in the Leased Real Property, in each case free and clear of any Encumbrances (other than the Permitted Exceptions). Except as set forth on Schedule 4.10(b) or as specifically disclosed in the Most Recent Balance Sheet, and except with respect to Owned Real Property, Leased Real Property or leased personal property, the Company and each of its Subsidiaries have good title to all of the Company Subsidiaries to conduct their operations other tangible personal property and assets shown on the Most Recent Balance Sheet or acquired after the date of the Most Recent Balance Sheet, free and clear of any Encumbrances, except for (i) Encumbrances disclosed in the Most Recent Balance Sheet, (ii) Taxes, fees, assessments or other governmental charges that are not delinquent or remain payable without penalty, (iii) carriers’, warehousemens’, mechanics’, landlords’, materialmens’, repairmens’ or other similar Encumbrances arising in the ordinary course of business, (iv) Encumbrances consisting of pledges or deposits required in the ordinary course of business consistent in connection with past practiceworkers’ compensation, unemployment insurance and other social security legislation or to secure liability to insurance carriers, (v) Encumbrances on any property acquired or held by the Company or its Subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for the purpose of financing (or refinancing) all or any part of the cost of acquiring such property, (vi) Encumbrances securing capital lease obligations, (vii) any interest or title of a lessor or sublessor, as lessor or sublessor, under any lease and any precautionary uniform commercial code financing statements filed under any lease, (viii) Encumbrances set forth on Schedule 4.10(b) and (ix) Encumbrances of record or imperfections of title that are not, individually or in the aggregate, material in character, amount or extent and that do not materially detract from the value or materially interfere with the present use of the assets subject thereto or affected thereby (the “Permitted Exceptions”).
Appears in 1 contract
Sources: Merger Agreement (Helen of Troy LTD)
Real and Personal Property. (a) The Company and its Subsidiaries do not own any real property.
(b) Section 3.14(a3.17(b) of the Company Disclosure Letter sets forth a correct complete and complete accurate list of all Company Owned Real Property showing the address and record titleholder thereof. The Company or a Company Subsidiary has good and marketable fee simple title to all Company Owned Real Property, free and clear of any Liens, other than Permitted Liens. With respect to each parcel of Company Owned Real Property, except as set forth on Section 3.14(a) of the Company Disclosure Letterdate of this Agreement of each lease, to the knowledge of the Companysublease, license or similar use and occupancy Contract (i) there are no outstanding optionsincluding any assignments, rights of first offer or rights of first refusal to purchase such parcel or any portion thereof or interest therein, (ii) there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting such parcel or any portion thereof or interest therein, (iii) all obligations of the Company or a Company Subsidiary with regard to all applicable covenants, easements and restrictions affecting such parcel have been and are being performed in all material respects in a proper and timely manner by the Company or a Company Subsidiary and (iv) such parcel is in compliance with all applicable Laws in all material respects.
(b) Section 3.14(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other occupancy agreements (together with any amendments, extensions and modifications and other supplements thereto, collectivelyeach, the a “Company LeasesLease”) pursuant to which the Company or any Company Subsidiary of its Subsidiaries leases, subleases or otherwise occupies uses or occupies, as applicable, any real or personal property and the address of such real property from any other Person (whether as a tenant, subtenant or pursuant to other occupancy arrangements) (collectively, the “Company Leased Real Property”). The Company has heretofore made available to Parent true a true, correct and complete copies copy of all each such Lease to date.
(c) Except as set forth on Section 3.17(c) of the Company Leases. The Disclosure Letter, (i) the Company or a Company Subsidiary has good and its Subsidiaries have valid title to leasehold interests under each of the leasehold estate created under the respective Company Leases, in each case free and clear of any all Liens, other than except for Permitted Liens. Each Liens and (ii) the Company and its Subsidiaries enjoy peaceful and undisturbed possession under all of the Leases for any Company Leases Leased Property.
(d) Each Lease for any Company Leased Property is in full force and effect and constitutes is a legal, valid and binding obligation of the Company or any of its Subsidiaries that is a party thereto, as applicable, and to the applicable Company Subsidiary. To the knowledge Knowledge of the Company, neither the Company nor any Company Subsidiary is in other parties thereto.
(e) No event has occurred and no condition exists, which with the giving of notice or the passage of time, or both, will constitute a default (which has not been previously cured) under any Company Lease, nor has any notice of default been received (which has not been previously cured) a Lease by the Company or any Company Subsidiary since January 1of its Subsidiaries, 2006or, except for to the Knowledge of the Company, any counterparty under such default or notice of defaultLease, that would, individually or in the aggregate, that has not had materially impair or be reasonably likely to materially impair the continued use and would not reasonably be expected to result in a Company Material Adverse Effect. The terms operations of the Company Leases have not been modified in any material respect, except Leased Property to the extent that such modifications are set forth which they relate in the documents previously made available to Parentconduct of the business of the Company and its Subsidiaries as presently conducted.
(f) (i) no Person, other than the Company or a Subsidiary of the Company, possesses, uses or occupies, as applicable, all or any portion of any Company Leased Property and (ii) neither the Company nor any Subsidiary of the Company Subsidiaries is in negotiations a party to any agreement, right of first offer, right of first refusal or option with any landlord to cancel or terminate any Company Lease prior respect to the stated maturity date purchase or sale of such Company Lease.
(c) Section 3.14(c) any real property or interest therein. As of the Company Disclosure Letter sets forth a truedate hereof, correct and complete list of all leasesthere are no pending or, subleases and other occupancy agreements pursuant to which the Company or any Company Subsidiary leases or subleases, as applicable, any Company Owned Real Property or Company Leased Real Property or any portion thereof to any Person (together with any amendments, modifications and other supplements thereto, collectively, the “Company Third Party Leases”). The Company has heretofore made available to Parent true and complete copies of all Company Third Party Leases. Each of the Company Third Party Leases is in full force and effect and constitutes a legal, valid and binding obligation of the Company or the applicable Company Subsidiary. To the knowledge Knowledge of the Company, neither the Company nor any Company Subsidiary is in default (which has not been previously cured) under any Company Third Party Lease, nor has any notice of default been received (which has not been previously cured) by the Company threatened Proceedings to take all or any Company Subsidiary since January 1, 2006, except for any such default or notice of default that, individually or in the aggregate, has not had and would not reasonably be expected to result in a Company Material Adverse Effect. The terms portion of the Company Third Party Leases have not been modified in any material respect, except to the extent that such modifications are set forth in the documents previously made available to Parent, and neither the Company nor any of the Company Subsidiaries is in negotiations with any tenant or subtenant to cancel or terminate any Company Third Party Lease prior to the stated maturity date of such Company Third Party Lease.
(d) The Company Owned Real Leased Property and the Company Leased Real Property constitute all of the real property used by the Company or any Company Subsidiary interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in the conduct of their businesslieu thereof.
(e) The property, plant and equipment of the Company and the Company Subsidiaries has been maintained in reasonable operating condition and repair, ordinary wear and tear excepted, and is in all material respects sufficient to permit the Company and the Company Subsidiaries to conduct their operations in the ordinary course of business consistent with past practice.
Appears in 1 contract
Sources: Merger Agreement (Corindus Vascular Robotics, Inc.)