Real and Personal Property. (a) Section 6.15(a) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in each case free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. (b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect. (c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect. (d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 4 contracts
Sources: Transaction Agreement (Weyerhaeuser Real Estate Co), Transaction Agreement (Weyerhaeuser Co), Transaction Agreement (Weyerhaeuser Co)
Real and Personal Property. (a) Section 6.15(a) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in each case free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property Except as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially have a Parent Material Adverse Effect, Parent and adversely affect the use its Significant Subsidiaries have good and marketable title to all real property owned by Parent or any of such assets as they are presently used or intended to be used in connection with the Parent Business its Significant Subsidiaries (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements ”), subject only to Permitted Liens.
(or otherwiseii) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment thatExcept as would not, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect , (A) each lease, sublease or license under which Parent or any of its Significant Subsidiaries leases, subleases or licenses any real property (each such lease, license or sublease, a “Parent Real Property Lease,” and such real property “Parent Leased Real Property”) is valid and in full force and effect, (B) neither Parent nor any of its Significant Subsidiaries, nor to Parent’s Knowledge any other party to a Parent 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 Parent Real Property Lease, and neither Parent nor any of its Significant Subsidiaries has received noticed that it has breached, violated or defaulted under any Parent Real Property Lease and (C) Parent and its Significant Subsidiaries have all necessary mineral rights, surface and subsurface rights, consents, easements, rights of way, permits, licenses, ingress, egress and access rights (and all other rights and interests granting Parent or any of its Subsidiaries the rights and ability to mine, extract, remove, process, transport and market the mineral reserves owned or controlled by Parent or its Subsidiaries), as are necessary for Parent and its Subsidiaries to conduct their business as presently conducted in the ordinary course.
(iii) All material tangible assets (including Owned Real Property that is under development and Leased Real Property) of Parent and its Significant Subsidiaries are, in 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 as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services thatwould not, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 3 contracts
Sources: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Ak Steel Holding Corp)
Real and Personal Property. (a) Section 6.15(a) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in each case free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property Except as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially result in a Company Material Adverse Effect, the Company and adversely affect its Subsidiaries have good and marketable title to all real property owned by the use Company or any of such assets as they are presently used or intended its Subsidiaries (the “Company Owned Real Property”), subject only to be used Permitted Liens and divestitures following the date hereof made in connection compliance with the Parent Business (terms of this Agreement. Neither the items in clauses (A) through (E)Company nor its Subsidiaries has granted, collectivelyor is obligated under, “Parent Permitted Liens”) and (ii) there are no reversion rightsany option, outstanding options or rights right of first offer, right of first refusal in favor or similar contractual right to sell or dispose of any other Person to purchase, lease, occupy or otherwise utilize the Parent Company Owned Real Property or any portion thereof or interest therein that therein.
(ii) Except as would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment thatnot, individually or in the aggregate, has not had and would not reasonably be expected to have result in a Parent Company Material Adverse Effect. With respect , (A) each lease, sublease or license under which the Company or any of its Subsidiaries leases, subleases or licenses any real property (each such lease, license or sublease, a “Company Real Property Lease,” and such real property “Company Leased Real Property”) is valid and in full force and effect, and (B) neither the Company nor any of its Subsidiaries, nor to the Company’s Knowledge any Parent other party to a Company 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 Company Real Property Lease, and neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any Company Real Property Lease.
(iii) All material tangible assets (including Owned Real Property that is under development and Leased Real Property) of the Company and its Subsidiaries are, in 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 as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services thatwould not, individually or in the aggregate, has not had and would not reasonably be expected to have result in a Parent Company Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 3 contracts
Sources: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Ak Steel Holding Corp)
Real and Personal Property. (a) Section 6.15(a) The Company and its Subsidiaries have good and marketable title in fee simple to all items of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests described in real property the Company Reports as being owned by Parent or any Parent Subsidiary (collectivelythem, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple valid title to all Parent Owned Real Propertypersonal property described in the Company Reports as being owned by them that are material to the businesses of the Company or such Subsidiary, in each case free and clear of all Liens other than liens, encumbrances and claims, except those matters that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and any of its Subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. Any real or personal property described in the Company Reports as being leased by the Company and any of its Subsidiaries is held by them under valid, existing and enforceable leases, except those that (A) Liens securing indebtedness reflected in do not materially interfere with the Parent Financial Statements, use made or proposed to be made of such property by the Company or any of its Subsidiaries or (B) Liens consisting of zoning would not be reasonably expected, individually or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course aggregate, to have a Material Adverse Effect. Each of business the properties of the Company and its Subsidiaries complies with all applicable codes, laws and regulations (E) Liens which including building and zoning codes, laws and regulations and laws relating to access to such properties), except for such failures to comply that would not, individually or in the aggregate, reasonably be expected to materially and adversely affect interfere in any material respect with the use made and proposed to be made of such assets as they are presently used property by the Company and its Subsidiaries or intended to be used in connection with otherwise have a Material Adverse Effect. None of the Parent Business (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options Company or rights of first refusal in favor its Subsidiaries has received from any Governmental Entities any notice of any other Person to purchasecondemnation of, leaseor zoning change affecting, occupy the properties of the Company and its Subsidiaries, and the Company knows of no such condemnation or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein zoning change which is threatened, except for such that would not reasonably be expected to materially and adversely affect interfere in any material respect with the use made and proposed to be made of such Parent Owned Real Property as it is presently used property by the Company and its Subsidiaries or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before otherwise have a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment thatMaterial Adverse Effect, individually or in the aggregate, has not had . The Company and would not reasonably be expected its Subsidiaries have good and marketable title to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property all personal property owned by them that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for material to the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) business of the Parent Disclosure Letter sets forth a true Company and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase ContractCompany Subsidiaries, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true liens, encumbrances and complete copy defects except such as do not materially affect the value of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real do not interfere with the use made and proposed to be made of such property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements by the Company and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effectits Subsidiaries.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 3 contracts
Sources: Exchange and Investment Agreement (Nikola Corp), Stock Purchase Agreement (Nikola Corp), Investment Agreement (Nikola Corp)
Real and Personal Property. (a) Section 6.15(a) of the Parent Disclosure Letter sets forth a true Except as has not been, and complete list, as of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing would not reasonably be expected to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in each case free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would notbe, individually or in the aggregate, material to the Company or its Subsidiaries, taken as a whole, the Company and its Subsidiaries have good and marketable title to, or valid leasehold interests in, all of their respective properties and assets, free and clear of all Encumbrances, except for Permitted Encumbrances. The Company and each of its Subsidiaries enjoy peaceful and undisturbed possession under each lease, sublease, license or other use or occupancy agreement pursuant to which the Company or any of its Subsidiaries leases, subleases, licenses or otherwise uses or occupies real property (such real property, the “Leased Real Property” and each, together with all amendments or modifications thereto and guaranties thereof, a “Real Property Lease”), except as has not had, and would not reasonably be expected to materially and adversely affect have, individually or in the use aggregate, a Company Material Adverse Effect. Schedule 3.18(a) sets forth, as of such assets as they are presently used the date of this Agreement, (i) all of the real property that is owned by the Company or intended to be used in connection with the Parent Business any Subsidiary (the items in clauses (A) through (E), collectively, “Parent Permitted LiensOwned Real Property”) and (ii) all of the material Leased Real Property.
(b) Each Real Property Lease is a valid and binding obligation of the Company or any of its Subsidiaries that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto and is in full force and effect, except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided that (i) such enforcement may be subject to applicable bankruptcy, insolvency, 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 relief 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.
(c) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in default under, and there is no event that with notice, lapse of time, or both, would constitute a default by Company or any of its Subsidiaries under, the provisions of any Real Property Lease, and to the Company’s Knowledge, no other party to a Real Property Lease is in default under, and there is no event that with notice, lapse of time, or both, would constitute a default by such other party under, any Real Property Lease. Neither the Company nor any of its Subsidiaries has received any written communication from, or given any written communication to, or to the Knowledge of the Company, received or given any other type of communication from or to, any other party to a Real Property Lease alleging that the Company, any of its Subsidiaries or such other party, as the case may be, is in default under such Real Property Lease.
(d) The Leased Real Property, together with the Owned Real Property, are referred to herein collectively as the “Real Property”. Except as set forth in Section 3.18(d) of the Company Disclosure Letter, no Person, other than the Company or a Subsidiary of the Company, possesses, uses or occupies all or any portion of any Real Property. There are no reversion rights, outstanding options or rights of first refusal in favor to purchase the Owned Real Property. Neither the Company nor any Subsidiary of the Company is a party to any agreement, right of first offer, right of first refusal or option with respect to the purchase or sale of any other Person real property or interest therein. There are no pending or, to purchasethe Knowledge of the Company, lease, occupy threatened Proceedings to take all or otherwise utilize any portion of the Parent Owned Real Property or any portion interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof or interest therein that to change or redefine the zoning classification of all or any portion of the Real Property, except as has not had, and would not reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment thathave, individually or in the aggregate, a Company Material Adverse Effect.
(e) Except as has not had had, and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services thathave, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Company Material Adverse Effect.
, all improvements located on the Real Property are in good condition (b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true ordinary wear and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”tear excepted). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned The Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) all of the Parent Disclosure Letter sets forth a true and complete list, as material real property used in connection with the operation of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct business of the Parent Business Company and its Subsidiaries as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 3 contracts
Sources: Merger Agreement (Welbilt, Inc.), Merger Agreement (Middleby Corp), Merger Agreement (Welbilt, Inc.)
Real and Personal Property. (a) Section 6.15(a) of the Parent Disclosure Letter sets forth a true and complete list, Except as of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in each case free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Company Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent the Company or a Parent Subsidiary pursuant to an option or purchase Contract its Subsidiaries have (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(ci) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid marketable fee simple title to the all Owned Real Property and (ii) a valid leasehold estates estate in or right to use all Parent Leased Real Property, in each case free and clear of all Liens other than Parent except for Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that.
(b) Except as would not, individually or in the aggregate, has had or would reasonably be expected to have a Parent Company Material Adverse Effect, as of the date hereof, (i) each of the leases and subleases of the Leased Real Property (the “Real Property Leases”) is a valid and binding agreement of the Company or one of its Subsidiaries, as the case may be, and, to the Knowledge of the Company, the other parties thereto, is in full force and effect and, subject to the Bankruptcy and Equity Exception, enforceable in accordance with its terms, (ii) neither the Company nor any Subsidiary has received or delivered written notice of any breach or default under any Real Property Lease, (iii) no event has occurred that with notice or lapse of time, or both, would constitute a breach or default by the Company, any Subsidiary or any other party under any Real Property Lease, and (iv) there is no pending or threatened (in writing) condemnation or eminent domain proceeding affecting any Real Property.
(dc) Parent Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company and each of its Subsidiaries has good title to, or a Parent Subsidiary has good valid leasehold interest in, the tangible personal assets and valid title to all personal properties and assets necessary used or held for use by it in connection with the conduct of its business as conducted on the Parent Business as currently conducteddate of this Agreement, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Nordstrom Erik B), Agreement and Plan of Merger (Nordstrom Inc)
Real and Personal Property. (a) Section 6.15(a) of the Parent Disclosure Letter sets forth a true TSG owns no real property. TSG has delivered to SJET correct and complete list, as copies of the date hereof, of leases and subleases for all real property leased or sublease by TSG. With respect to each such lease and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, sublease:
(i) Parent the lease or sublease is legal, valid, binding, enforceable against TSG respectively, as to lessor, the lease is in full force and effect;
(ii) except for the lessor's consent to the Combination Transaction, the lease or sublease will continue to be legal, valid, binding, enforceable and in full force and effect on substantially the same terms following the consummation of the transaction contemplated hereby;
(iii) TSG is not in breach or default, and no other party to the lease or sublease is in breach or default, and no event has occurred which, with notice or lapse of time, would constitute a Parent Subsidiary breach or default, or permit termination, modification or acceleration there under;
(iv) there are no disputes, oral agreements, or forbearance programs in effect as to the lease or sublease;
(v) with respect to each sublease, the representations and warranties set forth in subsections (i) through (iv) above are true and correct with respect to the underlying lease;
(vi) TSG has good and insurable fee simple title to all Parent Owned Real Propertynot assigned, transferred, conveyed, mortgaged, deeded in each case free and clear of all Liens other than (A) Liens securing indebtedness reflected trust, or encumbered any interest in the Parent Financial Statements, leasehold or sub leasehold;
(Bvii) Liens consisting all facilities leased or subleased there under have received all approvals of zoning or planning restrictions, governmental authorities (including licenses and permits, easements, 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 of such property as it is presently used or intended to be used ) required in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith operation thereof and for which adequate reserves have been created operated and maintained in accordance with GAAPapplicable laws, rules and regulations;
(Dviii) mechanics’all facilities lease or subleased there under are supplied with utilities and other services necessary for the operation of said facilities.
(b) TSG has good and marketable title to, carriers’or valid leasehold interests in, workmen’sall other assets used or held for use in the conduct of its business, materialmen’sincluding, repairmen’s and similar Liens arising without limitation, the assets reflected on the March 30, 2002 Balance Sheet or acquired after the date thereof (other than those which have been disposed of in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of since such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (Edate), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens any liens, other than Parent Permitted Liensliens reflected on the March 30, except 2002 Balance Sheet, and liens for any failure taxes not yet due and payable. All of the assets owned or leased by TSG are in all material respects in good condition and repair, ordinary wear and tear excepted, and well maintained. There are no material capital expenditures currently contemplated or necessary to have good and valid title that, individually or in maintain the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effectcurrent business of TSG.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Sonic Jet Performance Inc), Stock Purchase Agreement (Sonic Jet Performance Inc)
Real and Personal Property. (a) Section 6.15(aThe Companies do not own any real property. Schedule 3.18(a) of the Parent Disclosure Letter sets forth a true and complete list, as list of the date hereof, addresses of all real property Leased Premises and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in each case free and clear list of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse EffectTheatre Leases.
(b) Section 6.15(bExcept as set forth on Schedule 3.18(b):
(i) of each Theatre Lease is valid and binding on the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectivelyCompany party thereto, in each case together with all buildingsfull force and effect, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the terms enforcement of creditors’ rights and subject to general principles of equity); there are no existing defaults or any events that with passage of time or the relevant option giving of notice, or purchase Contractboth, in each case free and clear would constitute an event of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which default by the Parent Optioned Real Property is held. There is no default tenant under any such Contract by Parent or any Parent Subsidiary Theatre Lease or, to the knowledge Knowledge of Parent, by any other party thereto thatto any Theatre Lease;
(ii) there are no written or oral leases, individually subleases, licenses, concessions, occupancy rights or other Contracts granting to any Person other than a Company the right to use or occupy any Leased Premises, and there is no Person in possession or occupancy of any Leased Premises other than the aggregateCompanies;
(iii) the Leasehold Interests are free and clear of all Liens, other than Permitted Liens;
(iv) none of the Leased Premises, nor the condition nor the use thereof by the Companies, including the operation of the Business of the Companies, contravenes or violates any applicable zoning ordinance or other Law relating to the operation of the Leased Premises;
(v) the use of the Leased Premises as currently used is a permitted use by right under applicable zoning and similar Law and is not a nonconforming use, special use, or conditional use;
(vi) neither the Companies nor any of their Affiliates has had received any notice of any violation of any applicable zoning ordinance or would reasonably other Law relating to the operation of the Leased Premises; and
(vii) there are currently in full force and effect duly issued certificates of occupancy permitting the Leased Premises to be expected legally used and occupied as the same are currently constituted, and each of the Companies and their Affiliates are and have been since January 1, 2015 in compliance in all material respects with all restrictions, covenants and agreements related to have a Parent Material Adverse Effectthe Leased Premises.
(c) Section 6.15(c) Except as set forth on Schedule 3.18(c), all of the Parent Disclosure Letter sets forth a true Leased Premises have permanent rights of access to existing publically dedicated and complete listopen roads, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary orand, to the knowledge Knowledge of Parent, by any other party thereto thatthere is no: (i) condition or circumstance that would, individually or in the aggregate, has had or would could reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent prohibit, adversely affect or a Parent Subsidiary has good threaten ordinary rights of access to and valid title to all personal properties and assets necessary for the conduct from any of the Parent Business as currently conducted, free Leased Premises or existing publicly dedicated and clear open roads; (ii) planned or proposed increase in assessed valuation of all Liens any of the Leased Premises (other than Parent Permitted Liens, except for any failure to increases in the ordinary course consistent with past assessments); (iii) public improvements that have good and valid title been commenced or that are planned that, individually in either case, may result in a material special assessment against or otherwise materially adversely affect the value of any of the Leased Premises; or (iv) Leased Premises, or any part thereof, located in the aggregateany flood plain, has not had and would not reasonably be expected to have a Parent Material Adverse Effectflood hazard area, wetland or coastal control area.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Marcus Corp)
Real and Personal Property. (a) Neither ISI nor any of its Subsidiaries own or have owned any real property.
(b) Section 6.15(a4.10(b) of the Parent Disclosure Letter Schedule sets forth a true and complete list, as of the date hereof, list of all real property and interests in real property owned leased by Parent ISI or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing its Subsidiaries for which the annual rent payable pursuant to the benefit thereof and all other appurtenances and real property rights pertaining thereto, applicable lease exceeds $150,000 (the “Parent Owned ISI Leased Real Property”). As All leases and subleases relating to ISI Leased Real Property, including all amendments, extensions, renewals, guaranties and other agreements with respect thereto, are identified on Section 4.10(b) of the date hereofDisclosure Schedule (each a “ISI Lease” and collectively, the “ISI Leases”). ISI has delivered to ISH true and complete copies of the ISI Leases and there has not been any sublease or assignment entered into by ISI or any of its Subsidiaries in respect of any of the ISI Leases. With respect to each ISI Lease listed on Section 4.10(b) of the Disclosure Schedule:
(i) Parent ISI or a Parent Subsidiary of ISI, as applicable, has good a valid and insurable fee simple title enforceable leasehold interest to all Parent Owned the leasehold estate in the ISI Leased Real PropertyProperty granted to ISI or such Subsidiary, in as applicable, pursuant to each case pertinent Lease, and such leasehold interests are free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial StatementsEncumbrances, (B) Liens consisting of zoning or planning restrictionsexcept Permitted Encumbrances, permits, easements, 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 of except as such property as it is presently used or intended to enforceability may be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and limited by General Enforceability Exceptions;
(ii) there are no reversion rightseach of said ISI Leases has been duly authorized and executed by ISI or such Subsidiary, outstanding options as applicable;
(iii) ISI or rights of first refusal in favor of any other Person to purchasesuch Subsidiary has not leased, leasesubleased, occupy licensed or otherwise utilize granted any Person the Parent Owned Real Property right to use or occupy all or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect of the use of such Parent Owned ISI Leased Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent(other than ISI’s Affiliates, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet invitees and agents in the ordinary course of business. No Law ) and other than ISI or Judgment exists such Subsidiary there are no parties in possession of any portion of the ISI Leased Real Property, whether as lessees, tenants at will, trespassers or is otherwise; (ii) ISI has not received notice of any pending before a Governmental Entity that restricts condemnation or similar proceeding affecting any portion of the development or sale of Parent Owned ISI Leased Real Property that and, to the Knowledge of ISI, no such action is currently under development presently contemplated or being held for sale by Parent threatened; and (iii) there is no law, ordinance, order, regulation or requirement now in existence which would require any Parent material expenditure to remediate, remedy, remove, modify or improve any portion of the ISI Leased Real Property in order to bring it into compliance therewith;
(iv) subject to the General Enforceability Exceptions, all ISI Leases are valid and in full force and effect in all material respects; and
(v) neither ISI nor such Subsidiary, nor, to ISI’s Knowledge, any other than any such Law Person, is in breach or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any of such Contract ISI Leases in any material respect, nor, has any event occurred which, with notice or the passage of time, or both, would give rise to a breach or default by Parent or any Parent ISI, such Subsidiary or, to the knowledge ISI’s Knowledge, any Person, as applicable, under any of Parent, by such ISI Leases in any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effectmaterial respect.
(c) Except as set forth on Section 6.15(c4.10(c) of the Parent Disclosure Letter sets forth a true Schedule, ISI and complete list, as each of its Subsidiaries have good title to all of their tangible personal property and assets shown on the ISI Base Balance Sheet or acquired after the date of the date hereofISI Base Balance Sheet or used in the business, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent any Encumbrances, except for Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse EffectEncumbrances.
(d) Parent All tangible assets owned or a Parent Subsidiary has leased by ISI and its Subsidiaries have been maintained in all material respects in accordance with generally accepted industry practice, are in all material respects in good operating condition and valid title repair, ordinary wear and tear excepted, and are adequate in all material respects for the uses to all personal which they are being put. No other Person owns any material properties and or assets necessary for used in the conduct of the Parent Business business of ISI and its Subsidiaries as currently presently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good those properties and valid title that, individually assets leased or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effectlicensed from third parties.
Appears in 2 contracts
Sources: Contribution Agreement (Interior Logic Group Holdings, LLC), Contribution Agreement (Interior Logic Group Holdings, LLC)
Real and Personal Property. (a) Section 6.15(a3.16(a) of the Parent Company Disclosure Letter sets forth a true complete and complete list, as of the date hereof, accurate list of all real property and interests in real property owned by Parent the Company or any Parent Subsidiary of its Subsidiaries (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Company Owned Real Property”). As .
(b) Section 3.16(b) of the date hereofCompany Disclosure Letter sets forth a complete and accurate list of each lease pursuant to which the Company or any of its Subsidiaries leases, subleases or licenses an interest in real property from any other Person (iwhether as a tenant, subtenant or pursuant to other occupancy arrangements) Parent or a Parent Subsidiary has good (collectively, the “Company Leased Real Property” and insurable fee simple title to all Parent together with the Company Owned Real Property, in each case free the “Company Real Property”).
(c) Except as has not been, and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, covenants and other restrictions or limitations on the use or occupancy of real property or irregularities in title thereto, which do would not materially impair the use of such property as it is presently used or intended reasonably be expected to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would notbe, 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 (i) good title to, or valid leasehold interests in, all of their respective properties and assets, free and clear of all Liens, except for Permitted Liens and (ii) exclusive possession of all Company Leased Real Property, other than any use and occupancy rights granted to third party owners, tenants or licensees pursuant to agreements with respect to such Company Leased Real Property, entered into in the ordinary course of business.
(d) Each lease, sublease or license for Company Leased Real Property is a valid and binding obligation of the Company or any of its Subsidiaries that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto, except as has not been, and would not reasonably be expected to be, individually or in the aggregate, materially adverse to the Company and adversely affect the use of its Subsidiaries, taken as a whole; provided that (i) such assets as they are presently used or intended enforcement may be subject to be used in connection with the Parent Business applicable bankruptcy, insolvency (the items in clauses (A) through (Eincluding all Laws related to fraudulent transfers), collectivelyreorganization, “Parent Permitted Liens”) moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights and remedies generally and (ii) there the remedies of specific performance and injunctive relief 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.
(e) As of the date of this Agreement, except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, none of the Company or any of its Subsidiaries has received any written communication from, or given any written communication to, or to the Knowledge of the Company, received or given any other type of communication from or to, any other party to a lease for Company 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 under such lease.
(f) 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, no Person, other than the Company or a Subsidiary of the Company, possesses, uses or occupies all or any portion of any Company Real Property. There are no reversion rights, outstanding options or rights of first refusal in favor to purchase the Company Owned Real Property. Neither the Company nor any Subsidiary of the Company is a party to any agreement, right of first offer, right of first refusal or option with respect to the purchase or sale of any other Person real property or interest therein. There are no pending or, to purchasethe Knowledge of the Company, lease, occupy threatened Proceedings to take all or otherwise utilize any portion of the Parent Owned Company Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or by eminent domain or any condemnation proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwisethe jurisdictional equivalent thereof) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law sale or Judgment that, individually or disposition in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effectlieu thereof.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Rockwell Collins Inc)
Real and Personal Property. (a) Neither ILG nor any of its Subsidiaries own or have owned any real property.
(b) Section 6.15(a5.10(b) of the Parent Disclosure Letter Schedule sets forth a true and complete list, as of the date hereof, list of all real property and interests in real property owned leased by Parent ILG or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing its Subsidiaries for which the annual rent payable pursuant to the benefit thereof and all other appurtenances and real property rights pertaining thereto, applicable lease exceeds $150,000 (the “Parent Owned ILG Leased Real Property”). As All leases and subleases relating to ILG Leased Real Property, including all amendments, extensions, renewals, guaranties and other agreements with respect thereto, are identified on Section 5.10(b) of the date hereofDisclosure Schedule (each a “ILG Lease” and collectively, the “ILG Leases”). ILG has delivered to Faraday, true and complete copies of the ILG Leases and there has not been any sublease or assignment entered into by ILG or any of its Subsidiaries in respect of any of the ILG Leases. With respect to each ILG Lease listed on Section 5.10(b) of the Disclosure Schedule:
(i) Parent ILG or a Parent Subsidiary of ILG, as applicable, has good a valid and insurable fee simple title enforceable leasehold interest to all Parent Owned the leasehold estate in the ILG Leased Real PropertyProperty granted to ILG or such Subsidiary, in as applicable, pursuant to each case pertinent Lease, and such leasehold interests are free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial StatementsEncumbrances, (B) Liens consisting of zoning or planning restrictionsexcept Permitted Encumbrances, permits, easements, 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 of except as such property as it is presently used or intended to enforceability may be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and limited by General Enforceability Exceptions;
(ii) there are no reversion rightseach of said ILG Leases has been duly authorized and executed by ILG or such Subsidiary, outstanding options as applicable;
(iii) ILG or rights of first refusal in favor of any other Person to purchasesuch Subsidiary has not leased, leasesubleased, occupy licensed or otherwise utilize granted any Person the Parent Owned Real Property right to use or occupy all or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect of the use of such Parent Owned ILG Leased Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent(other than ILG’s Affiliates, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet invitees and agents in the ordinary course of business. No Law ) and other than ILG or Judgment exists such Subsidiary there are no parties in possession of any portion of the ILG Leased Real Property, whether as lessees, tenants at will, trespassers or is otherwise; (ii) ILG has not received notice of any pending before a Governmental Entity that restricts condemnation or similar proceeding affecting any portion of the development or sale of Parent Owned ILG Leased Real Property that and, to the Knowledge of ILG, no such action is currently under development presently contemplated or being held for sale by Parent threatened; and (iii) there is no law, ordinance, order, regulation or requirement now in existence which would require any Parent material expenditure to remediate, remedy, remove, modify or improve any portion of the ILG Leased Real Property in order to bring it into compliance therewith;
(iv) subject to the General Enforceability Exceptions, all ILG Leases are valid and in full force and effect in all material respects; and
(v) neither ILG nor such Subsidiary, nor, to ILG’s Knowledge, any other than any such Law Person, is in breach or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any of such Contract ILG Leases in any material respect, nor, has any event occurred which, with notice or the passage of time, or both, would give rise to a breach or default by Parent or any Parent ILG, such Subsidiary or, to the knowledge ILG’s Knowledge, any Person, as applicable, under any of Parent, by such ILG Leases in any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effectmaterial respect.
(c) Except as set forth on Section 6.15(c5.10(c) of the Parent Disclosure Letter sets forth a true Schedule, ILG and complete list, as each of its Subsidiaries have good title to all of their tangible personal property and assets shown on the ILG Base Balance Sheet or acquired after the date of the date hereofILG Base Balance Sheet or used in the business, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent any Encumbrances, except for Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse EffectEncumbrances.
(d) Parent All tangible assets owned or a Parent Subsidiary has leased by ILG and its Subsidiaries have been maintained in all material respects in accordance with generally accepted industry practice, are in all material respects in good operating condition and valid title repair, ordinary wear and tear excepted, and are adequate in all material respects for the uses to all personal which they are being put. No other Person owns any material properties and or assets necessary for used in the conduct of the Parent Business business of ILG and its Subsidiaries as currently presently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good those properties and valid title that, individually assets leased or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effectlicensed from third parties.
Appears in 2 contracts
Sources: Contribution Agreement (Interior Logic Group Holdings, LLC), Contribution Agreement (Interior Logic Group Holdings, LLC)
Real and Personal Property. (a) Section 6.15(a) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in With respect to each real property owned by Parent or any of its Subsidiaries that is material to Parent Subsidiary and its Subsidiaries, taken as a whole (such property collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of , except as would not reasonably be expected to have, individually or in the date hereofaggregate, a Parent Material Adverse Effect, (i) either Parent or a Subsidiary of Parent Subsidiary has good marketable and insurable fee simple title to all such Parent Owned Real Property, in each case free and clear of all Liens other than (A) Parent Permitted Liens securing indebtedness reflected in the Parent Financial Statementsand conditions, (B) Liens consisting of zoning or planning restrictions, permitsencroachments, easements, covenants rights-of-way, restrictions and other restrictions or limitations on the use or occupancy of real property or irregularities in title thereto, which encumbrances that do not materially impair the existing use of such the real property as it is presently used subject thereto by the owner (or intended lessee to be used in connection with the Parent Business, (Cextent a leased property) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising thereof in the ordinary course operation of its business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E“Permitted Encumbrances”), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rightsleases, subleases, licenses, rights or other agreements affecting any portion of the Parent Owned Real Property that would reasonably be expected to materially impair the existing use of the Parent Owned Real Property by Parent 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 Person party to purchase, lease, occupy or otherwise utilize the purchase such Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect impair the existing use of such the Parent Owned Real Property as it is presently used by Parent or intended any of its Subsidiaries in the operation of its business thereon. As of the date hereof, neither Parent nor any of its Subsidiaries has received notice of any pending, and to be used in connection with the Knowledge of Parent Business. To the knowledge of Parent, there is no pending or threatened threatened, condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment thatproceedings which would not reasonably be expected to have, individually or in the aggregate, has not had and a Parent Material Adverse Effect. Neither Parent nor any of its Subsidiaries is a party to any agreement or option to purchase any real property or interest therein.
(b) Except as would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services thathave, individually or in the aggregate, a Parent Material Adverse Effect, (i) each lease, sublease and other agreement (collectively, the “Parent Real Property Leases”) under which Parent or any of its Subsidiaries uses or occupies or has not had the right to use or occupy any real property that is material to Parent and its Subsidiaries, taken as a whole (the “Parent Leased Real Property”) at which the material operations of Parent or any of its Subsidiaries are conducted as of the date hereof, is valid, binding and in full force and effect, (ii) neither Parent 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 Parent Leased Real Property that would reasonably be expected to materially impair the existing use of the Parent Leased Real Property by Parent 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 Parent or, if applicable, any of its Subsidiaries or, to the Knowledge of Parent, the landlord thereunder, exists under any Parent 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 under a Parent Real Property Lease. Except as would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto thathave, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) , Parent and each of its Subsidiaries has a good and valid leasehold interest, subject to the terms of the Parent Disclosure Letter sets forth a true Real Property Leases, in each parcel of Parent Leased Real Property, free and complete listclear of all Liens, as except for Parent Permitted Liens and Permitted Encumbrances, and Parent’s or its Subsidiaries’ possession and quiet enjoyment of the Parent Leased Real Property under such Parent Real Property Lease has not been disturbed. As of the date hereof, neither Parent nor any of all real property and interests in real property leased to Parent or its Subsidiaries has received notice of any Parent Subsidiary (collectivelypending, in each case together with all buildingsand, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Knowledge of Parent, there is no threatened, condemnation proceeding with respect to any Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available except such proceeding which would not reasonably be expected to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto thathave, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (GenOn Energy, Inc.), Merger Agreement (NRG Energy, Inc.)
Real and Personal Property. (ai) Section 6.15(a3.1(r)(i) of the Parent Company Disclosure Letter sets forth a true true, correct and complete list, list of all real property owned by the Company and its Subsidiaries as of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary hereof (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As With respect to each such parcel of Owned Real Property that is necessary to the conduct of a material business of the date hereofCompany and its Subsidiaries, (iA) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in each case such parcel is free and clear of all Liens other than Liens, except for (A1) Liens securing indebtedness reflected Occupancy Agreements (as defined below) set forth in Section 3.1(r)(i) of the Parent Financial Statements, Company Disclosure Letter; (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (C2) Liens for current Taxestaxes, assessments or governmental similar charges or levies on property that are not yet delinquent due and payable; (3) Liens of landlords, mechanics, materialmen, warehousemen or which other like Liens that are not yet due and payable or are being contested in good faith faith; and for (4) Liens incurred after the date hereof in connection with capital leases and purchase money financings expressly permitted by Section 4.1(a) and covering only the assets subject to, financed by or acquired as a result of, such capital leases and/or purchase money financings (each of the foregoing (1) through (4), a “Permitted Lien”); (B) no Person (other than the Company or any Subsidiary) is in possession of such material Owned Real Property or any material part thereof except pursuant to any lease, sublease, license or other occupancy agreement pursuant to which adequate reserves the Company is a lessor or sublessor (“Occupancy Agreements”) or where possession would not have been created in accordance with GAAP, a material effect on the use of the property by the Company or its Subsidiaries; (C) there are no outstanding rights of first refusal or options to purchase such material Owned Real Property; (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s the Company or its Subsidiaries have good and similar Liens arising in the ordinary course of business and marketable fee simple title to such material Owned Real Property except for Permitted Liens; (E) Liens which the Company and/or its Subsidiary have adequate rights of ingress and egress with respect to such material Owned Real Property and the improvements located thereon; except as would not, individually or in the aggregate, reasonably be expected to materially impair the operations of the Company or the ownership or use of the Owned Real Property; and adversely affect (F) neither such material Owned Real Property nor any improvement located thereon, nor the use thereof, contravenes or violates any building, zoning, administrative, occupational safety and health or other applicable law in any material respect. Neither the Company nor any of such assets its Subsidiaries has assigned, mortgaged, deeded in trust or otherwise transferred or encumbered any Owned Real Property except for Permitted Liens.
(ii) Section 3.1(r)(ii) of the Company Disclosure Letter sets forth a true, correct and complete list of all material Leases (as they are presently used or intended to be used in connection with the Parent Business (the items in clauses defined below). (A) through All of the leases, licenses, tenancies, subleases and all other occupancy agreements under which the Company or any of its Subsidiaries leases, subleases, uses or occupies or has the right to use or occupy, now or in the future, any real property that is necessary to the conduct of a material business of the Company and its Subsidiaries (E), “Leases”) (the leased and subleased space or parcel of real property thereunder being collectively, the “Parent Leased Real Property”) are in full force and effect; (B) neither the Company nor any of its Subsidiaries is in material default under the Leases, and to the Knowledge of the Company no event has occurred which, with notice or lapse of time, would constitute a material default by the Company or any of its Subsidiaries under the Leases; (C) the Company or one of its Subsidiaries has a valid and subsisting leasehold estate in, and the right to quiet enjoyment of, the Leased Real Properties leased by it as tenant or subtenant; and (D) neither the Company nor any of its Subsidiaries has assigned, mortgaged, deeded in trust or otherwise transferred or encumbered the Leases except for Permitted Liens”.
(iii) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that Except as would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment thatnot, individually or in the aggregate, has not had and would not reasonably be expected to have result in a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent Company or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms one of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary its Subsidiaries has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for property reflected in the conduct latest audited balance sheet included in the SEC Documents as being owned by the Company or one of its Subsidiaries or acquired after the Parent Business as currently conducteddate thereof that are material to the Company’s business (except personal property sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than Parent except Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Edo Corp), Merger Agreement (Itt Corp)
Real and Personal Property. (aA) Except (x) for such breach of this Section 6.15(a5(a)(xx)(A) as may be caused fully or substantially by the third party member or partner in any Joint Venture, without the Knowledge or consent of the Parent Disclosure Letter sets forth Company or any of its Subsidiaries or (y) as would not individually or in the aggregate be reasonably expected to have a true Material Adverse Effect, the Company or one of its Subsidiaries owns good and complete listvalid fee simple title or valid and enforceable leasehold interests (subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at Law or in equity)), as applicable, to each of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary (collectivelyCompany Properties, in each case together with all buildingscase, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in each case free and clear of all Liens liens, mortgages or deeds of trust, claims against title, charges that are liens or other than (A) Liens securing indebtedness reflected in the Parent Financial Statementsencumbrances on title, (B) Liens consisting rights of zoning way, restrictive covenants, declarations or planning restrictions, permits, easements, covenants and other restrictions or limitations on the use or occupancy reservations of real property or irregularities an interest in title thereto(collectively, which do not materially impair “Encumbrances”), except for the use of such property as it is presently used following (collectively, the “Permitted Title Exceptions”):
(1) Encumbrances that result from any statutory or intended to be used in connection with the Parent Business, (C) Liens other liens for current Taxes, Taxes or assessments or governmental charges or levies on property that are not yet due or delinquent or the validity of which are is being contested in good faith by appropriate proceedings and for which adequate reserves a sufficient and appropriate reserve has been set aside for the full payment thereof;
(2) any contracts, or other occupancy agreements to third parties for the occupation or use of portions of the Company Properties by such third parties in the ordinary course of the business of the Company or its Subsidiaries;
(3) Encumbrances imposed or promulgated by Law or any Governmental Entity, including zoning, entitlement and other land use and environmental regulations;
(4) Encumbrances disclosed on existing title policies and current title insurance commitments or surveys made available to the Purchaser;
(5) Encumbrances on the landlord’s fee interest at any Company Property where the Company or its Subsidiary is the tenant under any ground lease, provided that neither the Company nor any of its Subsidiaries have been created received a notice indicating the intention of the landlord under such ground lease, or of any other Person, to (I) exercise a right to terminate such ground lease, evict the lessee or otherwise collect the sub-rents thereunder, or (II) take any other action that would be reasonably likely to result in accordance with GAAPa termination of such ground lease;
(6) any cashiers’, (D) landlords’, workers’, mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and materialmen’s liens and other similar Liens arising liens incurred in the ordinary course of business which (A) are being challenged in good faith by appropriate proceedings and for which a sufficient and appropriate reserve has been set aside for the full payment thereof or (B) have been otherwise fully bonded and discharged of record or for which a sufficient and appropriate reserve has been set aside for the full payment thereof; and
(7) any other easements, rights-of-way, restrictions (including zoning restrictions), covenants, encroachments, protrusions and other similar charges or Encumbrances, and title limitations or title defects, if any, that (I) are customary for office, industrial, master planned communities and retail properties or (II) individually or in the aggregate, would not be reasonably expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received a written notice of a material default, beyond any applicable grace and cure periods, of or under any Permitted Title Exceptions, except (x) as may have been caused fully or substantially by the third party member or partner in any Joint Venture, without the Knowledge or consent of the Company or any of its Subsidiaries, (y) where the Permitted Title Exceptions are in and of themselves evidence of default (such as mechanics’ liens and recorded notices of default) or (z) as would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect; provided, however, that where the Company has otherwise represented and warranted to the Purchaser (including as set forth on the Company Disclosure Letter pursuant to such representations and warranties) with respect to the Company’s Knowledge of, the Company’s receipt of notice of or the existence of a default in connection with a particular category of Permitted Title Exceptions, such categories of Permitted Title Exceptions shall not be included in the representation set forth in this sentence.
(B) With respect to each Company Ground Lease Property, to the Company’s Knowledge, neither the Company nor any of its Subsidiaries has received notice of material defaults (including, without limitation, payment defaults, but limited to those circumstances where such default may grant the landlord under such ground lease the right to terminate such ground lease, evict the lessee or otherwise collect the sub-rents thereunder) at such Company Ground Lease Property beyond any applicable grace and cure periods, except (x) as would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect and (Ey) Liens which as may be caused fully or substantially by the third party member or partner in any Joint Venture, without the Knowledge or consent of the Company or any of its Subsidiaries.
(C) Neither the Company nor any of its Subsidiaries is a party to any agreement relating to the property management (but not including any leasing, development, construction or brokerage agreements) of any of the Company Properties by a party other than Company or any wholly owned Company Subsidiaries, except (x) management agreements that may be terminated without cause or payment of a termination fee upon no more than 60 days’ notice or (y) as would not, individually or in the aggregate, reasonably be expected to materially and adversely affect have a Material Adverse Effect;
(D) Neither the use Company nor any of such assets its Subsidiaries have received a written notice of default (beyond any applicable grace or cure periods) in the (x) payment of interest, principal or other material amount due to the lender under any Company Mortgage Loan, whether as they are presently used the primary obligor or intended to be used in connection with the Parent Business as a guarantor thereof or (the items in clauses (Ay) through (E), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor performance of any other Person material obligations under any Company Mortgage Loan, except, with respect solely to purchase(y) above, leasewhich would not individually or in the aggregate, occupy be reasonably expected to have a Material Adverse Effect;
(E) To the Knowledge of the Company, (1) neither the Company nor any of its Subsidiaries has received a written notice exercising an option, “buy-sell” right or otherwise utilize the Parent Owned Real other similar right to purchase a Company Property or any material portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaidwhich has not previously closed, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment thatas would not, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With Effect with respect to such Company Property and (2) no Company Property is subject to a purchase and sale agreement or any Parent Owned Real similar legally binding agreement to purchase such Company Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effectmaterial portion thereof.
(bF) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together The Company has conducted due inquiry with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing respect to the benefit thereof representations and all other appurtenances warranties made in Section 5(a)(xx)(B) and real property rights pertaining thereto, the “Parent Optioned Real Property”Section 5(a)(xx)(E). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 2 contracts
Sources: Share Purchase Agreement (Pershing Square Capital Management, L.P.), Share Purchase Agreement (Howard Hughes Holdings Inc.)
Real and Personal Property. (a) Section 6.15(a) of the Parent Disclosure Letter sets forth a true Except as has not had, and complete list, as of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing would not reasonably be expected to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in each case free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would nothave, individually or in the aggregate, a Company Material Adverse Effect, the Company and its Subsidiaries (as applicable) have (i) good title to, or valid leasehold interests in, all of their respective properties and assets, free and clear of all Liens, except for Permitted Liens, and (ii) exclusive possession of all Company Leased Real Property, other than any use and occupancy rights granted to third party owners, tenants or licensees pursuant to agreements with respect to such Company Leased Real Property, entered into in the ordinary course of business. Other than as constitutes a Permitted Lien, neither the Company nor any of its Subsidiaries is a lessor or grantor under any material lease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any material real property owned by the Company or any of its Subsidiaries or any material portion thereof.
(b) Each lease, sublease or license for Company Leased Real Property is a valid and binding obligation of the Company or any of its Subsidiaries that is a party thereto, as applicable, and to the Knowledge of the Company, the other parties thereto, except as has not had, and would not reasonably be expected to materially and adversely affect have, individually or in the use of aggregate, a Company Material Adverse Effect; provided that (i) such assets as they are presently used or intended enforcement may be subject to be used in connection with the Parent Business applicable bankruptcy, insolvency (the items in clauses (A) through (Eincluding all Laws related to fraudulent transfers), collectivelyreorganization, “Parent Permitted Liens”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 relief 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.
(c) As of the date of this Agreement, except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, none of the Company or any of its Subsidiaries has received any written communication from, or given any written communication to, or to the Knowledge of the Company, received or given any other type of communication from or to, any other party to a lease for Company 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 under such lease.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (i) no Person, other than the Company or a Subsidiary of the Company, possesses, uses or occupies all or any portion of any real property owned or leased by the Company or any of its Subsidiaries, (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of to purchase any other Person to purchase, lease, occupy or otherwise utilize real property owned by the Parent Owned Real Property Company or any portion thereof of its Subsidiaries or any interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwiseiii) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is there are no default under any such Contract by Parent or any Parent Subsidiary pending or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) Knowledge of the Parent Disclosure Letter sets forth a true and complete listCompany, as threatened Proceedings to take all or any portion of the date hereof, of all any real property and interests in real property owned or leased to Parent by the Company or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease interest therein by Parent eminent domain or any Parent Subsidiary or, to condemnation proceeding (or the knowledge of Parent, by jurisdictional equivalent thereof) or any other party thereto that, individually sale or disposition in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effectlieu thereof.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (United Technologies Corp /De/)
Real and Personal Property. (a) Section 6.15(a) Except as disclosed on Schedule 2.12(a), each of the Parent Disclosure Letter sets forth Partnership Entities owns valid and defensible fee title to, or holds a true and complete listvalid leasehold interest in, as of or a right-of-way or easement (collectively, the date hereof"RIGHTS-OF-WAY") through, of all real property and interests in real property owned by Parent used or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to necessary for the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As conduct of the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in business of each case free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property Partnership Entity as it is presently used or intended to be used in connection with the Parent Business, conducted (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E"REAL PROPERTY"), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date each of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary Partnership Entities has good and valid title to all of the material tangible personal properties property and assets necessary for which it owns and which are reflected in the conduct New Company Financial Statements or in the consolidated financial statements of the Parent Business as currently conductedPartnership included in the SEC Reports or which are thereafter acquired to the date hereof (except for assets and properties sold, consumed or otherwise disposed of in the ordinary course of business consistent with past practices since December 31, 2002), and all such Real Property, assets and properties are owned or leased free and clear of all Liens other than Parent Permitted LiensEncumbrances, except for any failure (i) Encumbrances set forth on Schedule 2.12(b), (ii) liens for current Taxes not yet due and payable or for Taxes the validity of which is being contested in good faith (and to have good and valid title thatthe extent the amount being contested exceeds $100,000, individually or that are set forth on Schedule 2.10(b)(ii)), (iii) Encumbrances to secure indebtedness reflected in the aggregateconsolidated financial statements of the Partnership included in the SEC Reports, (iv) Encumbrances that will be discharged on or prior to the Closing Date, (v) laws, ordinances and regulations affecting building use and occupancy or reservations of interest in title (collectively, "PROPERTY RESTRICTIONS") imposed or promulgated by law or any Governmental Authority with respect to Real Property, including zoning regulations, provided they do not materially interfere with the present use of the applicable Real Property, (vi) Encumbrances, Property Restrictions, Rights-of-Way and written agreements of record or copies of which have been furnished to Buyer, provided they do not materially interfere with the present use of the applicable Real Property, (vii) mechanics', carriers', workmen's, repairmen's or similar types of liens, if any, which do not materially detract from the value of or materially interfere with the present use of any Real Property subject thereto or affected thereby and which have arisen or been incurred in the ordinary course of business, (viii) Parent Credit Facility Liens (which shall be released prior to or at Closing) and (ix) Encumbrances and minor title defects that do not materially detract from the value or materially interfere with the present use of the asset subject thereto (clauses (i) through (ix) above referred to collectively as "PERMITTED ENCUMBRANCES"). Notwithstanding the foregoing, with respect to Rights-of-Way, the Selling Parties represent only that each of the Partnership Entities has not had and would not reasonably be expected sufficient title thereto to have a Parent Material Adverse Effectenable it to conduct its business as presently conducted.
Appears in 2 contracts
Sources: Purchase Agreement (Williams Companies Inc), Purchase Agreement (Williams Companies Inc)
Real and Personal Property. Schedule 3.6 lists all real properties -------------------------- ------------ owned by the Company or its Subsidiaries that are individually material to the operation of the business of the Company ("Owned Real Properties") and all real properties leased by the Company or its Subsidiaries that are individually material to the operation of the business of the Company ("Leased Real Properties"). The Company or a Subsidiary (i) has good and marketable title to all of its Owned Real Properties; (ii) possesses a valid leasehold interest in its Leased Real Properties; and (iii) has title to, or subsisting leasehold interests in, all of its personal properties and assets which are material to the business of the Company and its Subsidiaries and are used solely in the business of the Company and its Subsidiaries or reflected on the Base Balance Sheet (as defined below) (except for property and assets disposed of since the date of the Base Balance Sheet or acquired since the date of the Base Balance Sheet and required by the generally accepted accounting principles to be recorded on the balance sheets of the Company), free and clear of any liens, security interests and other encumbrances ("Encumbrances"), except for (a) Section 6.15(aEncumbrances set forth on Schedule 3.6, (b) Encumbrances reflected in the Base ------------ Balance Sheet or created in the ordinary course of business subsequent to the date of the Parent Disclosure Letter sets forth a true Base Balance Sheet, (c) Encumbrances of record or otherwise that do not and complete list, as will not materially interfere with the present use by the Company or its Subsidiaries of the date hereofproperty subject thereto or affected thereby or which otherwise have not in the aggregate had a Material Adverse Effect, of all real property and interests in real property owned by Parent (d) Encumbrances for taxes, assessments or any Parent Subsidiary (collectivelygovernmental charges, or landlords', mechanics', workmen's, materialmen's or similar liens, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in each case free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, covenants and other restrictions or limitations on the use or occupancy of real property or irregularities in title thereto, which do that are not materially impair the use of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (De) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising Encumbrances that are reflected in the ordinary course of business and (E) Liens which would nottitle reports or surveys, individually if any, delivered or in the aggregate, reasonably be expected otherwise made available to materially and adversely affect the use of such assets as they are presently used or intended to be used Buyer in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effecttransactions contemplated hereby.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 1 contract
Sources: Stock Purchase Agreement (Outdoor Communications Inc /De/)
Real and Personal Property. (a) Section 6.15(a) of the Parent Disclosure Letter sets forth The FPC Companies own, or have a true valid and complete listenforceable right to use or a valid and enforceable leasehold interest in, as of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with including all buildings, structuresfixtures and other improvements thereto) used by them in the conduct of their respective businesses as such businesses are now being conducted. Except as disclosed in the FPC SEC Reports or the FPC Disclosure Schedule, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As none of the date hereof, (i) Parent FPC Companies' ownership of or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, leasehold interest in each case free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of any such property as it is presently used subject to any mortgage, pledge, lien, option, conditional sale agreement, encumbrance, security interest, title exception or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments restriction or governmental charges claim or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor charge of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements kind (or otherwise) against any Parent Owned Real Property held for development are unpaid"Encumbrances"), except for charges or assessments reflected such Encumbrances that in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would aggregate may not reasonably be expected to have a Parent Material Adverse EffectEffect on FPC. With respect to any Parent Owned Real Property that All such property is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer in good condition and storm sewer, repair and other services necessary is suitable in all material respects for the intended operation purposes for which it is now being used in the conduct of the businesses of the FPC Companies, except to the extent that the poor condition or unsuitability of any such property would not in the aggregate reasonably be expected to have a Material Adverse Effect on FPC. To the Knowledge of FPC, there are no conditions existing in respect of such subdivisions assets which would require FPC or communitiesany of its Subsidiaries to incur any capital expenditures relating thereto which are materially in excess of the amounts budgeted by FPC (as reflected in existing budgets of FPC, all true and correct copies of which utilities and services are adequate were delivered to CP&L) for such operation pursuant to all applicable Lawsmaintenance, other than any failure to supply utilities repair or services that, individually renewal of the assets.
(b) Except as otherwise disclosed in the FPC Disclosure Schedule or in the aggregateFPC SEC Reports filed prior to the date hereof, has not had all personal property that is owned by the FPC Companies or used by any of them in the conduct of their respective businesses is owned free and would clear of any Encumbrances, except for such Encumbrances that in the aggregate may not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true Effect on FPC. All such property is in good working condition, subject to normal wear and complete listtear, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates suitable in all Parent Leased Real Property, material respects for the purposes for which it is now being used in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear businesses of all Liens other than Parent Permitted Liensthe FPC Companies, except for to the extent that the poor condition or unsuitability of any failure to have good and valid title that, individually or such property in the aggregate, has not had and would aggregate may not reasonably be expected to have a Parent Material Adverse EffectEffect on FPC.
Appears in 1 contract
Sources: Agreement and Plan of Exchange (Florida Power Corp /)
Real and Personal Property. (a) Section 6.15(aSchedule 3.13(a) of the Parent Disclosure Letter sets forth a true lists and complete list, as of the date hereof, of describes briefly all real property and interests in that ISC owns. With respect to each such parcel of owned real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, property:
(i) Parent or a Parent Subsidiary Except as set forth in Schedule 3.13(a), ISC has good and insurable fee simple marketable title to all Parent Owned Real Propertythe parcel of real property, in each case free and clear of all Liens any security interest, easement, covenant, or other than (A) Liens securing indebtedness reflected in the Parent Financial Statementsrestriction, (B) Liens consisting except for installments of zoning or planning restrictions, permits, special assessments not yet delinquent and recorded easements, covenants 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 current use, occupancy, or value, or the marketability of such title, of the property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and subject thereto;
(ii) there are no reversion rightspending or to the knowledge of Shareholders threatened condemnation proceedings, lawsuits, or administrative actions relating to the property or other matters affecting and adversely the current use, occupancy, or value thereof;
(iii) the legal description for the parcel contained in the deed thereof describes such parcel fully and adequately, the buildings and improvements are located within the boundary lines of the described parcels of land, are not in violation of applicable setback requirements, zoning laws, and ordinances (and none of the properties or buildings or improvements thereon are subject to "permitted non-conforming use" or "permitted non-conforming structure" classifications), and do not encroach on any easement which may burden the land, and the land does not serve any adjoining property for any purpose inconsistent with the use of the land, and the property is not located within any flood plain or subject to any similar type restriction for which any permits or licenses necessary to the use thereof have not been obtained;
(iv) all facilities have received all approvals of governmental authorities (including licenses and permits) required in connection with the ownership or operation thereof and have been operated and maintained in accordance with applicable laws, rules, and regulations;
(v) there are no leases, subleases, licenses, concessions, or other agreements, written or oral, granting to any party or parties the right of use or occupancy of any portion of the parcel of real property;
(vi) there are no outstanding options or rights of first refusal in favor to purchase the parcel of any other Person to purchasereal property, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used therein;
(vii) there are no parties in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date possession of the Parent Balance Sheet in the ordinary course parcel of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiaryreal property, other than tenants under any such Law or Judgment that, individually or Leases disclosed in Schedule 3.13(b) who are in possession of space to which they are entitled;
(viii) all facilities located on the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development parcel of real property are or will be supplied with utilitiesutilities and other services necessary for the operation of such facilities, including gas, electricity, water, telephone, sanitary sewer sewer, and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to in accordance with all applicable Lawslaws, other than any failure ordinances, rules, and regulations and are provided via public roads or via permanent, irrevocable, appurtenant easements benefiting the parcel of real property; and
(ix) each parcel of real property abuts on and has direct vehicular access to supply utilities a public road, or services thathas access to a public road via a permanent, individually or in irrevocable, appurtenant easement benefiting the aggregateparcel of real property, has not had and would not reasonably be expected access to have a Parent Material Adverse Effectthe property is provided by paved public right-of-way with adequate curb cuts available.
(b) Section 6.15(bSchedule 3.13(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, list of all interests in real property held by Parent leases, subleases, licenses or similar agreements ("Leases") to which ISC is a Parent Subsidiary pursuant party (copies of which have previously been furnished to an option or purchase Contract (collectivelyACS), in each case together with all buildingssetting forth (A) the landlord and tenant or sublessor and sublessee, structuresas applicable, thereof and the date and term of each of the Leases, (B) the legal description or street address of each property covered thereby, and (C) a brief description (including size and function) of the principal improvements and fixtures buildings thereon and all easements and rights of way pertaining thereto or accruing to (the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”"Leased Premises"). Parent The Leases are in full force and effect and have not been amended, ISC is not in default under the Leases and no other no party thereto is in default or a Parent Subsidiary breach under any such Lease. No event has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance occurred which, with the terms passage of time or the giving of notice or both, would cause a material breach of or default under any of such Leases. There is no breach or anticipated breach by any other party to such Leases. With respect to each of the relevant option or purchase ContractLeased Premises:
(i) ISC has valid leasehold interests in the Leased Premises, in each case which leasehold interests are free and clear of any liens, covenants and easements or title defects of any nature whatsoever;
(ii) To the best knowledge of the Shareholders, the portions of the buildings located on the Leased Premises that are used in the business of ISC are each in good repair and condition (including, without limitation, the electrical, mechanical, HVAC, plumbing, elevator, other building systems and structural components serving such premises, and the roofs are water-tight) normal wear and tear excepted, and are in the aggregate sufficient to satisfy ISC's current business activities as conducted thereat;
(iii) Each of the Leased Premises
(A) has direct access to public roads or access to public roads by means of a perpetual access easement, such access being sufficient to satisfy the current and reasonably anticipated normal transportation requirements of ISC's business as presently conducted at such premises; and (B) is served by all Liens other than Parent Permitted Liens. Parent has made available utilities in such quantity and quality as are sufficient to Weyerhaeuser a true satisfy the current normal business activities as conducted at such premises;
(iv) ISC and complete copy the Shareholders have not received notice of each material option or purchase Contract under which (A) any condemnation proceeding with respect to any portion of the Parent Optioned Real Property is held. There is no default under any such Contract by Parent Leased Premises or any Parent Subsidiary oraccess thereto, and, to the best knowledge of Parentthe Shareholders, no such proceeding is contemplated by any other party thereto thatgovernmental authority; or (B) any special assessment which may affect any of the Leased Premises, individually and, to the best knowledge of the Shareholders, no such special assessment is contemplated by any governmental authority;
(v) To the best knowledge of the Shareholders, each of the Leased Premises, including all buildings located thereon, conform to all requirements of any underlying covenants, conditions, restrictions and encumbrances, all insurance underwriter's requirements, all applicable rules, regulations, statutes, ordinances, laws and building codes, (collectively, "Laws");
(vi) To the best knowledge of the Shareholders, there are no Laws under active consideration by any Governmental Authority which could require ISC to make any expenditure in excess of $5,000 to modify or improve the Leased Premises to bring them into compliance therewith; and
(vii) Neither ISC nor the Shareholders have received any notice from any insurance company of any defects or inadequacies in the aggregate, has had Leased Premises or would reasonably be expected to have a Parent Material Adverse Effectany part thereof which could adversely affect the insurability of the Leased Premises or the premiums for the insurance thereof.
(c) Section 6.15(cSchedule 3.13(c) of the Parent Disclosure Letter sets forth an accurate list of all personal property on the Interim Balance Sheet and all other personal property owned or leased by ISC with a true and complete list, value in excess of $10,000 (a) as of the date hereofInterim Balance Sheet Date and (b) acquired since the Interim Balance Sheet Date, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, including in each case together with true, complete and correct copies of leases for material equipment and all real properties on which are situated buildings, structureswarehouses, improvements workshops, garages and fixtures thereonother structures used in the operation of the business of ISC. All leases to which ISC is a party are in full force and effect and constitute valid and binding agreements of ISC and, to the best knowledge of the Shareholders, the “Parent Leased Real Property”other parties thereto in accordance with their respective terms. All fixed assets used by ISC that are material to the operation of its business are either owned by ISC or leased under an agreement listed on Schedule 3.13(b). Parent or a Parent Subsidiary Except as set forth on Schedule 3.13(c), ISC has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid marketable title to all personal properties of its assets free from all liens, charges, pledges, security interests, claims and assets necessary for the conduct encumbrances of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effectevery kind.
Appears in 1 contract
Sources: Stock Purchase Agreement (Advanced Communication Systems Inc)
Real and Personal Property. (a) Section 6.15(aOwned Real Properties. Schedule 2.17(a) of the Parent Disclosure Letter sets forth a true complete and complete list, accurate list of all real property owned in whole or in part by the Company and each Subsidiary as of the date hereof (the "Owned Real Property"). Schedule 2.17(a) includes the name of the record title holder thereof as of the date hereof, of all real property and interests . Except as set forth in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining theretoSchedule 2.17(a), the “Parent Owned Real Property”). As of the date hereof, (i) Parent Company or a Parent relevant Subsidiary has good and insurable marketable fee simple title in and to all Parent the Owned Real Property, in each case free and clear of all Liens other than liens except (Ai) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permitsfor general real estate taxes and special assessments not yet delinquent, easements, covenants rights of parties in possession, covenants, conditions and restrictions and other restrictions or limitations on the use or occupancy matters of real property or irregularities in title thereto, record which do not materially impair the occupancy or use of such property as the Owned Real Property for the purposes for which it is presently used or intended to be currently used in connection with the Parent BusinessCompany's or relevant Subsidiary's business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (Eii) Liens as otherwise set forth on Schedule 2.17(a). Except as disclosed in Schedule 2.17(a), there are no pending or proposed special or other assessments, for public improvements or otherwise, affecting any Owned Real Property which would notcould reasonably be expected to have a Company Material Adverse Effect. The Owned Real Property complies with all applicable laws and is benefitted by those licenses or permits required to be maintained for the development, use or occupancy of any portion of the Owned Real Property except to the extent such failure to comply or be benefitted, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would could not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Company Material Adverse Effect.
(b) Section 6.15(bLeased Real Properties. Schedule 2.17(b) of the Parent Disclosure Letter sets forth (whether as lessee or lessor) leases of real property ("Leased Real Property") to which the Company or any Subsidiary is a true and complete listparty or by which any of them is bound, in each case, as of the date hereof, of all interests in real property held by Parent except for any lease or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract agreement under which the Parent Optioned Real Property aggregate annual rental payments do not exceed $100,000 (each a "Material Lease", and collectively the "Material Leases"). Except as set forth on Schedule 2.17(b), each Material Lease is held. There is no default under any such Contract by Parent valid and binding on the Company or any Parent Subsidiary orthe applicable Subsidiary, as the case may be, and, to the knowledge of ParentCompany's knowledge, by any on the other party parties thereto thatand is in full force and effect. Except as set forth on Schedule 2.17(b), individually the Company or in the aggregateapplicable Subsidiary, has had or would reasonably be expected as the case may be, and, to have a Parent Material Adverse Effect.
(c) Section 6.15(c) the Company's knowledge, each of the Parent Disclosure Letter sets forth a true other parties thereto has performed in all material respects all material obligations required to be performed by it under each Material Lease. To the Company's knowledge, the Leased Real Property complies with all applicable laws and complete listis benefitted by those licenses or permits required to be maintained for the development, as or use or occupancy of any portion of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, except to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any extent such failure to have good and valid title that, individually or in the aggregate, has not had and would comply could not reasonably be expected to have a Parent Company Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Global Power Equipment Group Inc/)
Real and Personal Property. (a) Section 6.15(aThe Company does not own any real property. Schedule 3.15(a) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, list of all real property and interests in real property owned by Parent leases, subleases, licenses or any Parent Subsidiary similar agreements (collectively"Leases") to which the Company is a party (copies of which have previously been furnished to USOP), in each case together with all buildingssetting forth (A) the landlord and tenant or sublessor and sublessee, structuresas applicable, thereof and the date and term of each of the Leases, (B) the legal description or street address of each property covered thereby, and (C) a brief description (including size and function) of the principal improvements and fixtures buildings thereon (the "Leased Premises"). The Leases are in full force and all easements effect and rights have not been amended except as set forth on Schedule 3.15(a), and no party thereto is in default or breach under any such Lease. No event has occurred which, with the passage of way pertaining thereto time or accruing the giving of notice or both, would cause a material breach of or default by the Company or to the benefit thereof Company's and all the Stockholders' best knowledge, by the landlord under any of such Leases. To the Company's and Stockholders' best knowledge, there is no breach or anticipated breach by any other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”)party to such Leases. As With respect to each of the date hereof, Leased Premises:
(i) Parent or a Parent Subsidiary The Company has good and insurable fee simple title to all Parent Owned Real Propertyvalid leasehold interests in the Leased Premises, in each case which leasehold interests are free and clear of all Liens any liens, covenants and easements or title defects of any nature whatsoever;
(ii) To the best knowledge of the Company and the Stockholders, the portions of the buildings located on the Leased Premises that are used in the business of the Company are each in good repair and condition (including, without limitation, the electrical, mechanical, HVAC, plumbing, elevator, other than building systems and structural components serving such premises, and the roofs are water-tight), and are in the aggregate sufficient to satisfy the Company's current and reasonably anticipated normal business activities as conducted thereat;
(iii) Each of the Leased Premises
(A) Liens securing indebtedness reflected in the Parent Financial Statements, has direct access to public roads or access to public roads by means of a perpetual access easement; and (B) Liens consisting is served by all utilities in such quantity and quality as are sufficient to satisfy the current normal business activities as conducted at such premises;
(iv) The Company and the Stockholders have not received notice of zoning or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges portion of the Leased Premises or assessments imposed any access thereto, and, to the best knowledge of the Company and the Stockholders, no such proceeding is contemplated by any Governmental Entity governmental authority; or other Person for improvements (B) any special assessment which may affect any of the Leased Premises, and, to the best knowledge of the Company and the Stockholders, no such special assessment is contemplated by any governmental authority;
(v) To the best knowledge of the Company and the Stockholders, each of the Leased Premises, including all buildings located thereon, conform to all requirements of any underlying covenants, conditions, restrictions and encumbrances, all insurance underwriter's requirements, all applicable rules, regulations, statutes, ordinances, laws and building codes, (collectively, "Laws");
(vi) To the best knowledge of the Company and the Stockholders, there are no Laws under active consideration by any governmental authority which could require the Company to make any expenditure in excess of $5,000 to modify or otherwiseimprove the Leased Premises to bring them into compliance therewith; and
(vii) against Neither the Company nor either of the Stockholders has received any Parent Owned Real Property held for development are unpaid, except for charges notice from any insurance company of any defects or assessments reflected inadequacies in the Parent Balance Sheet Leased Premises or incurred after any part thereof which could adversely affect the date insurability of the Parent Balance Sheet in Leased Premises or the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary premiums for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effectinsurance thereof.
(b) Section 6.15(bSchedule 3.15(b) of the Parent Disclosure Letter sets forth an accurate list of all personal property included in "depreciable plant, property and equipment" on the Interim Balance Sheet and all other personal property owned or leased by the Company with a true and complete list, value in excess of $10,000 (a) as of the date hereofInterim Balance Sheet Date and (b) acquired since the Interim Balance Sheet Date, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, including in each case together with true, complete and correct copies of leases for material equipment and all real properties on which are situated buildings, structureswarehouses, improvements workshops, garages and fixtures thereon other structures used in the operation of the business of the Company. Except as set forth in Schedule 3.15(b), none of the Company's owned or leased real property, or personal property is currently owned, or were formerly owned, by either of the Stockholders or business or personal affiliates of the Company or either of the Stockholders. All of the trucks and all easements other material machinery and rights equipment of way pertaining thereto or accruing the Company are in good working order and condition, ordinary wear and tear excepted. All leases to which the Company is a party are in full force and effect and constitute valid and binding agreements of the Company and, to the benefit thereof best knowledge of the Company and all other appurtenances and real property rights pertaining theretothe Stockholders, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and other parties thereto in accordance with their respective terms. All fixed assets used by the terms Company that are material to the operation of its business are either owned by the relevant option Company or purchase Contractleased under an agreement listed on Schedule 3.15(b). Schedule 3.15(b) includes without limitation true, in each case free complete and clear correct copies of all Liens other than Parent Permitted Lienstitle reports and title insurance policies received or owned by the Company that are still in effect. Parent has made available to Weyerhaeuser Schedule 3.15(b) also includes a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, 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 and interests in real property leased to Parent or any Parent Subsidiary (collectivelyexisting business, in each case together with all buildings, structures, improvements and fixtures thereon, which if pursued by the “Parent Leased Real Property”). Parent Company or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear Surviving Corporation would require additional material expenditures of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effectcapital.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Us Office Products Co)
Real and Personal Property. (a) Section 6.15(a) Each of the Parent Disclosure Letter sets forth a true Sellers and complete list, as of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent or a Parent Subsidiary Solutions has good and insurable fee simple title to, or valid leasehold interests in, or easements or other limited property interests in, all of its Real Properties constituting Acquired Assets (and, in the case of Solutions, all of its Real Properties) and has good and marketable title to its personal property and Assets constituting Acquired Assets (and, in the case of Solutions, all Parent Owned Real Propertyof its Assets), in each case free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statementscase, (B) Liens consisting of zoning or planning restrictions, permits, easements, covenants and other restrictions or limitations on the use or occupancy of real property or irregularities except for defects in title thereto, which that do not materially impair interfere with its ability to conduct its business as currently conducted or to utilize such properties and Assets for their intended purposes and except where the use of failure to have such property as it is presently used or intended title would not reasonably be expected to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would nothave, individually or in the aggregate, reasonably be expected to materially a Material Adverse Effect. All such Acquired Assets are free and adversely affect clear of Liens, other than as (i) are described in the use of such assets as they are presently used or intended to be used consolidated balance sheets included in connection with the Parent Business (the items in clauses (A) through (E)Historical Financial Statements, collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options Permitted Liens or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwiseiii) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has have not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) Each of the Parent Disclosure Letter sets forth a true Sellers and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together Solutions has complied with all buildingsobligations under all leases relating to Acquired Assets to which it is a party, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing except where the failure to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option comply would not reasonably be expected to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto thathave, individually or in the aggregate, has had a Material Adverse Effect. All such leases may be assumed or rejected in the Bankruptcy Cases and otherwise are in full force and effect, except as set forth in Section 4.3(b) of the Disclosure Letter, or in respect of which the failure to be in full force and effect would not reasonably be expected to have have, individually or in the aggregate, a Parent Material Adverse Effect. Except as set forth in Section 4.3(b) of the Disclosure Letter, each Seller and Solutions enjoys peaceful and undisturbed possession under all such leases, other than leases in respect of which the failure to enjoy peaceful and undisturbed possession would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c) Section 6.15(c4.3(c) of the Parent Disclosure Letter sets forth is a true and complete correct list, as of the date hereofof this Agreement, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease constituting Acquired Assets owned by Parent or any Parent Subsidiary or, to Sellers and the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effectaddresses thereof.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct Section 4.3(d) of the Parent Business Disclosure Letter is a true and correct list, as currently conductedof the date of this Agreement, free and clear of all Liens other than Parent Permitted LiensReal Property constituting Acquired Assets leased by Sellers and the addresses thereof.
(e) As of the date of this Agreement, except for no Seller or Sold Company has received any failure to have good and valid title thatwritten notice of any pending or contemplated condemnation proceeding affecting any of its owned Real Property constituting Acquired Assets (and, individually or in the aggregatecase of Solutions, has affecting any of its owned Real Property) or any sale or disposition thereof in lieu of condemnation that remains unresolved.
(f) The First Amended and Restated Wholesale Satellite Capacity Agreement dated as of October 6, 2010 between TerreStar Solutions Inc. and TerreStar Networks (Canada) Inc. did not had and would not reasonably be expected Transfer to have a Parent Material Adverse Effect.Solutions any property interest in the Satellite (as defined therein), 100% of which is owned by TerreStar Networks (Canada) Inc.
Appears in 1 contract
Sources: Purchase Agreement (Dish DBS Corp)
Real and Personal Property. (a) Section 6.15(a) Except as disclosed on Schedule 2.11(a), to the Knowledge of the Parent Disclosure Letter sets forth a true and complete listSeller, as each of the date hereofCompany and the LLC owns valid and defensible fee title to, of or holds a valid leasehold interest in, or a valid right-of-way or easement (all such rights-of-way and easements collectively, the "RIGHTS-OF-WAY") through, all real property and interests in real property owned by Parent ("REAL PROPERTY") used or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to necessary for the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As conduct of the date hereofCompany's business as it is presently conducted, (i) Parent or a Parent Subsidiary and each of the Company and the LLC has good and insurable fee simple valid title to all Parent Owned of the material tangible assets and properties which they own and which are reflected on the Financial Statements (except for assets and properties sold, consumed or otherwise disposed of in the ordinary course of business since the date of the Financial Statements), and all such Real Property, in each case assets and properties (other than Rights-of-Way) are owned or leased free and clear of all Liens other than Encumbrances, except for (Ai) Liens securing Encumbrances set forth on Schedule 2.11(b), (ii) liens for current Taxes not yet due and payable or for Taxes the validity of which is being contested in good faith, (iii) Encumbrances to secure indebtedness reflected in on the Parent Financial Statements, (Biv) Liens consisting Encumbrances which will be discharged on or prior to the Closing Date, (v) laws, ordinances and regulations affecting building use and occupancy or reservations of interest in title (collectively, "PROPERTY RESTRICTIONS") imposed or promulgated by law or any Governmental Authority with respect to Real Property, including zoning or planning restrictionsregulations, permitsprovided they do not materially adversely affect the current use of the applicable Real Property, easements(vi) Encumbrances, covenants Property Restrictions, Rights-of-Way and written agreements of record, (vii) mechanics', carriers', workmen's and repairmen's liens and other restrictions or Encumbrances, Property Restrictions and other limitations on the use or occupancy of real property or irregularities in title theretoany kind, if any, which do not materially impair detract from the value of or materially interfere with the present use of such property as it is presently used any Real Property subject thereto or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments affected thereby and which have arisen or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising incurred in the ordinary course of business and (Eviii) Liens which would not, individually Encumbrances that do materially detract from the value or in materially interfere with the aggregate, reasonably be expected to materially and adversely affect the present use of such assets as they are presently used or intended to be used in connection with the Parent Business asset subject thereto (the items in clauses (Ai) through (Eviii) above referred to collectively as "PERMITTED ENCUMBRANCES"), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) Except as set forth on Schedule 2.11(b), there are no material structural defects relating to any of the Parent Disclosure Letter sets forth a true and complete list, as of improvements to the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon Real Property and all easements tangible assets and rights of way pertaining thereto property owned and used by the Company or accruing to the benefit thereof LLC are in good operating condition, ordinary wear and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effecttear excepted.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 1 contract
Real and Personal Property. Sufficiency of Assets of the Company.
(a) Section 6.15(a) Except as set forth on Schedule 2.11(a), the Company or one of the Parent Disclosure Letter sets forth its Subsidiaries owns marketable fee title to, or holds a true and complete listvalid leasehold interest in, as of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary right-of-way easements through (collectively, in each case together with the "Rights of Way") all buildingsmaterial real property (collectively, structures"Real Property") used or necessary for the conduct of the Company's and its Subsidiaries' businesses, improvements as they are presently conducted and fixtures thereon and all easements and rights of way pertaining thereto or accruing as conducted immediately prior to the benefit thereof Contributions, and all other appurtenances and real property rights pertaining theretoexcept for the Omnibus Excluded Assets (as defined below), the “Parent Owned Real Property”). As Company or one of the date hereof, (i) Parent or a Parent Subsidiary its Subsidiaries has good and insurable fee simple valid title to all Parent Owned Real Property, in each case free of the material tangible assets used or necessary for the conduct of the Company's and clear of all Liens other than (A) Liens securing indebtedness its Subsidiaries' businesses as they are presently conducted and as conducted immediately prior to the Contributions or which material tangible assets are reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, covenants and other restrictions or limitations on the use Financial Statements (except for assets sold, consumed or occupancy otherwise disposed of real property or irregularities in title thereto, which do not materially impair the use of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business since the date of the Financial Statements) and (Eii) Liens all such material Real Property and assets (other than Rights of Way) are owned or leased by the Company or its Subsidiaries free and clear of all Encumbrances, except for (A) Encumbrances set forth on Schedule 2.11(a), (B) liens for current Taxes not yet due and payable or for Taxes the validity of which would notis being contested in good faith in appropriate proceedings, individually (C) rights of way, laws, ordinances and regulations affecting building use and occupancy (collectively, "Property Restrictions") imposed or in the aggregatepromulgated by law or any Governmental Authority with respect to Real Property, reasonably be expected to including zoning regulations, provided they do not materially and adversely affect the current use of such assets as they are presently used the applicable real property, and (D) mechanics', carriers', workmen's and repairmen's liens and other Encumbrances of any kind, if any, which do not materially detract from the value of or intended to be used in connection materially interfere with the Parent Business present use of any Real Property or assets subject thereto or affected thereby and which have arisen or been incurred in the ordinary course of business (the items in clauses (A) through (ED) above are referred to collectively as "Permitted Encumbrances"). All Rights of Way used or necessary for the conduct of the Company's and its Subsidiaries' businesses, collectivelyas they are presently conducted and as conducted immediately prior to the Contributions, “Parent Permitted Liens”) are owned or leased by the Company or one of its Subsidiaries, free and (ii) there are no reversion rightsclear of all Encumbrances created by the Seller, outstanding options or rights any affiliate of first refusal in favor of any other Person to purchasethe Seller, lease, occupy or otherwise utilize the Parent Owned Real Property Company or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use Subsidiary of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaidCompany, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date Permitted Encumbrances.
(b) The Pipeline Systems are contiguous to all points of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held delivery and receipt, except for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment failures to be contiguous that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) There are no material structural defects relating to any of the Parent Disclosure Letter sets forth a true and complete listimprovements to the Real Property (including, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereonwithout limitation, the “Parent Leased Real Property”). Parent Pipeline Systems) and all tangible assets and seasonal property used or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business Company's and its Subsidiaries' businesses, as currently conductedthey are presently conducted and as conducted immediately prior to the Contributions, free are in good operating condition, ordinary wear and clear tear and obsolescence excepted. To the Company's knowledge, all improvements to the real property used or necessary for the conduct of all Liens the Company's and its Subsidiaries' businesses, as they are presently conducted and as conducted immediately prior to the Contributions, do not encroach in any respect on property of others (other than Parent Permitted Liens, encroachments that would not materially impair the operations of the Company and its Subsidiaries currently conducted thereon).
(d) Except as set forth on Schedule 2.11(d) and except for the Omnibus Excluded Assets, the assets owned, leased or licensed by the Company and its Subsidiaries constitute all of the assets and rights used by the Seller, the Seller's affiliates, the Company and its Subsidiaries to conduct the businesses of the Company and its Subsidiaries and the operation of the Pipeline Systems and the Terminals and Storage Assets as they are presently conducted and as conducted immediately prior to the Contributions.
(e) Except as set forth on Schedule 2.11(e), there is no pending or, to the Seller's knowledge, threatened condemnation of any failure part of the Real Property used or necessary for the conduct of the Company's and its Subsidiaries' businesses, as they are presently conducted and as conducted immediately prior to have good and valid title thatthe Contributions, individually by any Governmental Authority which would materially adversely affect the Company's or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effectits Subsidiaries' use of such Real Property.
Appears in 1 contract
Real and Personal Property. Sufficiency of Assets of the Company
(a) Section 6.15(a) Except as set forth on Schedule 2.11(a), the Company or one of the Parent Disclosure Letter sets forth its Subsidiaries owns marketable fee title to, or holds a true and complete listvalid leasehold interest in, as of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary right-of-way easements through (collectively, in each case together with the "Rights of Way") all buildingsmaterial real property (collectively, structures"Real Property") used or necessary for the conduct of the Company's and its Subsidiaries' businesses, improvements as they are presently conducted and fixtures thereon and all easements and rights of way pertaining thereto or accruing as conducted immediately prior to the benefit thereof Contributions and all other appurtenances and real property rights pertaining theretoexcept for the Omnibus Excluded Assets, the “Parent Owned Real Property”). As Company or one of the date hereof, (i) Parent or a Parent Subsidiary its Subsidiaries has good and insurable fee simple valid title to all Parent Owned Real Property, in each case free of the material tangible assets used or necessary for the conduct of the Company's and clear of all Liens other than (A) Liens securing indebtedness its Subsidiaries' businesses as they are presently conducted and as conducted immediately prior to the Contributions or which material tangible assets are reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, covenants and other restrictions or limitations on the use Financial Statements (except for assets sold, consumed or occupancy otherwise disposed of real property or irregularities in title thereto, which do not materially impair the use of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business since the date of the Financial Statements) and (Eii) Liens all such material Real Property and assets (other than Rights of Way) are owned or leased by the Company or its Subsidiaries free and clear of all Encumbrances, except for (A) Encumbrances set forth on Schedule 2.11(a), (B) liens for current Taxes not yet due and payable or for Taxes the validity of which would notis being contested in good faith in appropriate proceedings, individually (C) rights of way, laws, ordinances and regulations affecting building use and occupancy (collectively, "Property Restrictions") imposed or in the aggregatepromulgated by law or any Governmental Authority with respect to Real Property, reasonably be expected to including zoning regulations, provided they do not materially and adversely affect the current use of such assets as they are presently used the applicable real property, and (D) mechanics', carriers', workmen's and repairmen's liens and other Encumbrances of any kind, if any, which do not materially detract from the value of or intended to be used in connection materially interfere with the Parent Business present use of any Real Property or assets subject thereto or affected thereby and which have arisen or been incurred in the ordinary course of business (the items in clauses (A) through (ED) above are referred to collectively as "Permitted Encumbrances"). All Rights of Way used or necessary for the conduct of the Company's and its Subsidiaries' businesses, collectivelyas they are presently conducted and as conducted immediately prior to the Contributions, “Parent Permitted Liens”) are owned or leased by the Company or one of its Subsidiaries, free and (ii) there are no reversion rightsclear of all Encumbrances created by the Seller, outstanding options or rights any affiliate of first refusal in favor of any other Person to purchasethe Seller, lease, occupy or otherwise utilize the Parent Owned Real Property Company or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use Subsidiary of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaidCompany, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date Permitted Encumbrances. The Pipeline Systems are contiguous to all points of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held delivery and receipt, except for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment failures to be contiguous that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) There are no material structural defects relating to any of the Parent Disclosure Letter sets forth a true and complete listimprovements to the Real Property (including, as of without limitation, the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon Pipeline Systems) and all easements tangible assets and rights of way pertaining thereto seasonal property used or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business Company's and its Subsidiaries' businesses, as currently conductedthey are presently conducted and as conducted immediately prior to the Contributions, free are in good operating condition, ordinary wear and clear tear and obsolescence excepted. To the Company's knowledge, all improvements to the real property used or necessary for the conduct of all Liens the Company's and its Subsidiaries' businesses, as they are presently conducted and as conducted immediately prior to the Contributions, do not encroach in any respect on property of others (other than Parent Permitted Liens, encroachments that would not materially impair the operations of the Company and its Subsidiaries currently conducted thereon).
(c) Except as set forth on Schedule 2.11(c) and except for the Omnibus Excluded Assets, the assets owned, leased or licensed by the Company and its Subsidiaries constitute all of the assets and rights used by the Seller, the Seller's affiliates, the Company and its Subsidiaries to conduct the businesses of the Company and its Subsidiaries and the operation of the Pipeline Systems as they are presently conducted and as conducted immediately prior to the Contributions.
(d) Except as set forth on Schedule 2.11(d), there is no pending or, to the Seller's knowledge, threatened condemnation of any failure part of the Real Property used or necessary for the conduct of the Company's and its Subsidiaries' businesses, as they are presently conducted and as conducted immediately prior to have good and valid title thatthe Contributions, individually by any Governmental Authority which would materially adversely affect the Company's or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effectits Subsidiaries' use of such Real Property.
Appears in 1 contract
Real and Personal Property. (a) Section 6.15(a) Except as disclosed on Schedule 2.12(a), each of the Parent Disclosure Letter sets forth Partnership Entities owns valid and defensible fee title to, or holds a true and complete listvalid leasehold interest in, as of or a right-of-way or easement (collectively, the date hereof“Rights-of-Way”) through, of all real property and interests in real property owned by Parent used or any Parent Subsidiary necessary for the conduct of the business of each such Partnership Entity as it is presently conducted (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As , and each of the date hereof, (i) Parent or a Parent Subsidiary Partnership Entities has good and insurable fee simple valid title to all Parent Owned of the material tangible personal property and assets which it owns and which are reflected in the New Company Financial Statements or in the consolidated financial statements of the Partnership included in the SEC Reports or which are thereafter acquired to the date hereof (except for assets and properties sold, consumed or otherwise disposed of in the ordinary course of business consistent with past practices since December 31, 2002), and all such Real Property, in each case assets and properties are owned or leased free and clear of all Liens other than Encumbrances, except for (Ai) Liens securing indebtedness reflected in the Parent Financial StatementsEncumbrances set forth on Schedule 2.12(b), (Bii) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens liens for current Taxes, assessments or governmental charges or levies on property Taxes not yet delinquent due and payable or for Taxes the validity of which are is being contested in good faith (and for to the extent the amount being contested exceeds $100,000, that are set forth on Schedule 2.10(b)(ii)), (iii) Encumbrances to secure indebtedness reflected in the consolidated financial statements of the Partnership included in the SEC Reports, (iv) Encumbrances that will be discharged on or prior to the Closing Date, (v) laws, ordinances and regulations affecting building use and occupancy or reservations of interest in title (collectively, “Property Restrictions”) imposed or promulgated by law or any Governmental Authority with respect to Real Property, including zoning regulations, provided they do not materially interfere with the present use of the applicable Real Property, (vi) Encumbrances, Property Restrictions, Rights-of-Way and written agreements of record or copies of which adequate reserves have been created in accordance furnished to Buyer, provided they do not materially interfere with GAAPthe present use of the applicable Real Property, (Dvii) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and or similar Liens arising in types of liens, if any, which do not materially detract from the ordinary course value of business and (E) Liens which would not, individually or in materially interfere with the aggregate, reasonably be expected to materially and adversely affect the present use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property subject thereto or any portion thereof affected thereby and which have arisen or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or been incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law , (viii) Parent Credit Facility Liens (which shall be released prior to or Judgment exists at Closing) and (ix) Encumbrances and minor title defects that do not materially detract from the value or is pending before a Governmental Entity that restricts materially interfere with the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) present use of the Parent Disclosure Letter sets forth a true and complete list, asset subject thereto (clauses (i) through (ix) above referred to collectively as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real PropertyPermitted Encumbrances”). Parent or a Parent Subsidiary has a valid option Notwithstanding the foregoing, with respect to acquire all Parent Optioned Real Property pursuant to and in accordance with Rights-of-Way, the terms Selling Parties represent only that each of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent Partnership Entities has made available sufficient title thereto to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, enable it to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effectconduct its business as presently conducted.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 1 contract
Sources: Purchase Agreement (Magellan Midstream Holdings Lp)
Real and Personal Property. (a) Section 6.15(aSchedule 2.8(a) of the Parent Seller Disclosure Letter Schedule sets forth (x) a description of the real property and facilities leased in connection with the Business (each, a “Leased Real Property” and collectively, the “Leased Real Property”) and, (y) with respect to each Leased Real Property, the address, approximate square footage, annual base rent, additional rent and/or operating expenses currently being charged by any landlord based on estimates of the landlord (including any true-up for utility costs, insurance costs, and taxes), the security or other deposit collected and /or applied, including the date on which interest (if any) commenced to accrue thereon, expansion options (if any), the amount of prepaid rent, if any, and the expiration date thereof. A true and complete listcopy of each lease for each such Leased Real Property (including all amendments, subordination and non-disturbance agreements, estoppel certificates and related documents) (each, a “Lease” and collectively, the “Leases”) has been delivered or made available to Buyer. With respect to each Lease:
(i) Parent or Seller, as applicable, which is the tenant under such Lease, has good, valid and enforceable leasehold interests to the leasehold estate in the Leased Real Property used by Parent or Seller, as applicable, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors’ rights and general principles of equity;
(ii) the Lease has been duly authorized and executed, is in full force and effect and there is no existing material default or alleged material default by Parent or Seller, as applicable (nor would Parent or Seller be in material default or alleged to be in material default with the giving of notice, passage of time, or both), and, to the best of Parent’s or Seller’s knowledge, as applicable, except as set forth on Schedule 2.8(a)(ii) of Seller Disclosure Schedule, no party other than Parent or Seller is in default with respect to such party’s obligations under such Lease (or would be in default or alleged to be in default with the giving of notice, passage of time, or both);
(iii) except as set forth on Schedule 2.8(a)(iii) of Seller Disclosure Schedule, all duties or obligations of Parent or Seller, as applicable, required under its respective Lease have been fully performed as of the date hereof, of all real property and interests in real property owned by the respective landlords under the Leases have no outstanding claims against Parent or any Parent Subsidiary (collectivelySeller, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights as applicable. All duties or obligations of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, landlords under the “Parent Owned Real Property”). As Leases have been fully performed as of the date hereof;
(iv) except as set forth on Schedule 2.8(a)(iv) of Seller Disclosure Schedule, all rental or other payments due under each such Lease as of the date hereof have been paid in full;
(iv) each Lease, as it may have been modified or amended, contains the entire agreement of the landlord and Parent or Seller, as applicable, with respect to the applicable Leased Real Property and there are no other agreements, documents or arrangements (with the landlord or any other party) with respect to the use and occupancy of such Leased Real Property other than the Lease;
(vi) Parent’s or Seller’s, as applicable, possession of the applicable Leased Real Property has not been disturbed, nor has any claim been asserted against Parent or Seller, as applicable, that is or could be adverse to Parent’s or Seller’s interests under such Lease;
(vii) except as set forth on Schedule 2.8(a)(vii) of Seller Disclosure Schedule, such Lease is not subject to any rights of set-off, recoupment or similar deduction or offset;
(viii) Parent and Seller are not aware of any third party (other than the landlord under Parent’s Lease) whose consent is required in connection with the assignment of the Leases, and the assignment of Parent’s or Seller’s, as applicable, rights under such Lease will not impair or conflict with the validity or enforceability of such Lease assuming that all consents and approvals required for such collateral assignment have been obtained; and
(ix) neither Parent nor Seller, as applicable, has assigned or encumbered any of its rights, title or interest in or under such Lease nor has Parent or Seller, as applicable, agreed to any oral modifications of any of the provisions of such Lease.
(b) Schedule 2.8(b)(x) of Seller Disclosure Schedule sets forth a Parent Subsidiary has good true, correct and insurable fee simple title to all Parent Owned Real Property, in each case free and clear complete list of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statementstangible personal property, (B) Liens consisting of zoning or planning restrictionsmachinery, permitsequipment, easementstools, covenants machine and other restrictions or limitations on the use or occupancy of real property or irregularities in title theretoelectric parts, which do not materially impair the use of such property as it is presently used or intended to be supplies, computers, appliances, office furniture and fixtures and vehicles used in connection with the Parent BusinessBusiness as of October 31, 2010 (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, the “Material Personal Property”). Except as set forth on Schedule 2.8(b)(y) of Seller Disclosure Schedule, Parent Permitted Liens”) and (ii) there Seller have, and at Closing shall transfer to Buyer, good, marketable and valid title to, are no reversion rightsthe exclusive legal and equitable owners of, outstanding options or rights and have the unrestricted power and right to sell, assign, and deliver to Buyer, all of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Material Personal Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect assets shown on the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Interim Balance Sheet or incurred acquired after the date of the Parent Interim Balance Sheet and all Purchased Assets, free and clear of any Lien except for (i) assets that have been disposed of to nonaffiliated third parties since October 31, 2010 in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or (ii) Liens expressly reflected in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewerInterim Balance Sheet, and other services (iii) Permitted Liens. The assets set forth on Schedule 2.8(b)(x) of Seller Disclosure Schedule constitute all of the tangible personal property assets necessary for the intended operation of such subdivisions the Business as currently conducted by Parent and Seller and reflected in the Financial Statements and Interim Balance Sheet. Each asset identified or communitiesrequired to be identified on Schedule 2.8(b)(x) of Seller Disclosure Schedule: (A) is structurally sound, free of material defects and deficiencies and in good condition and repair (ordinary wear and tear excepted); (B) complies in all material respects with, and is being operated and otherwise used in full compliance with, all of applicable legal requirements; (C) is adequate and appropriate for the uses to which utilities it is being put, and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or (D) is in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) possession of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse EffectSeller.
(c) Section 6.15(cSeller does not own nor has it owned any real property, and Parent does not own nor has it owned any real property that is used in connection with the Business. Schedule 2.8(c) of the Parent Seller Disclosure Letter sets forth a true and complete list, as Schedule identifies all of the date hereof, of all real property and interests in real property assets that are being leased or licensed to Parent or any Parent Subsidiary (collectively, Seller in each case together connection with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”)Business. Parent or a Parent Subsidiary has and Seller have, and at Closing shall transfer to Buyer, good and valid title leasehold interest to all of the leasehold estates in all Parent Leased Real Propertyleased or licensed assets identified or required to be identified on Schedule 2.8(c) of Seller Disclosure Schedule, in each case free and clear of all Liens other than Parent any Lien except for Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good The Purchased Assets will collectively constitute, as of the Closing Date, all of the properties, rights, interests and valid title to all personal properties other tangible and intangible assets necessary for to enable Buyer to conduct the conduct of Business in the manner in which the Business is currently being conducted by Parent and Seller, such Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or it is reflected in the aggregate, has not had Financial Statements and would not reasonably be expected to have a Parent Material Adverse EffectInterim Balance Sheet.
Appears in 1 contract
Real and Personal Property. (a) Section 6.15(aSchedule 4.17(a) of the Parent Disclosure Letter sets forth a true the mailing address and complete list, as legal description of the date hereof, each parcel of all real property and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of .
(b) With respect to the date hereof, Owned Real Property: (i) Parent or a Parent Subsidiary Seller has good and insurable marketable fee simple title to all Parent the Owned Real Property, in each case which shall be free and clear of all Liens and possessory interests of any other than (A) Liens securing indebtedness reflected in Person, from and after the Parent Financial StatementsClosing, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent except Permitted Liens”) and , (ii) Seller has not leased or otherwise granted to any Person the right to use or occupy the Owned Real Property or any portion thereof; (iii) other than the right of Buyer pursuant to this Agreement, there are no reversion rightsoutstanding options, outstanding options or rights of first offer, rights of first refusal in favor of any other Person to purchase, leaseor rights of repurchase or forfeiture of, occupy the Owned Real Property or otherwise utilize any portion thereof or interest therein, (iv) Seller is not a party to any agreement or option to purchase any real property or interest therein relating to Seller’s Terminal Business, (v) Seller has not received any written notice of Proceedings pending and, to the Parent Knowledge of Seller, there are no Proceedings threatened against or affecting, any of the Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect in the use nature of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge lieu of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect proceedings; (vi) there are no Proceedings pending, and, to any Parent Owned Real Property. No developer-related charges the Knowledge of Seller, there are no Proceedings threatened against or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent affecting the Owned Real Property held for development are unpaid, except for charges or assessments reflected any portion thereof or interest therein which would (A) limit or result in the Parent Balance Sheet or incurred after the date termination of the Parent Balance Sheet in Real Property’s existing access to and from public streets or roads or (B) prohibit the ordinary course continued use of business. No Law the Real Property or Judgment exists or is pending before a Governmental Entity that restricts any portion thereof for the development or sale of Parent Terminal Business, (vii) the Owned Real Property that is currently under development has direct vehicular and pedestrian access to abutting public roads or being held for sale by Parent streets and (viii) except as set forth in Schedule 4.17(b), there are no consents or any Parent Subsidiary, other than any such Law or Judgment that, individually or in approvals related to the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary required for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) consummation of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse EffectContemplated Transactions.
(c) Section 6.15(cSchedule 4.17(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, list of all real property and interests in real property leased by Seller to Parent which it is a tenant or any Parent Subsidiary subtenant (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title Each lease agreement with respect to the leasehold estates Leased Real Property (each a “Real Property Lease”) is valid and binding on Seller, enforceable in accordance with its terms (subject to proper authorization and execution of such Real Property Lease by the other party thereto and subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). Seller, and, to Seller’s Knowledge, each of the other parties to each Real Property Lease, has performed in all Parent material respects all obligations required to be performed by it under each Real Property Lease. There are no written or oral (i) subleases, concessions or other Contracts granting to any Person the right to use or occupy any Leased Real Property, in each case free and clear or (ii) outstanding options, rights of first offer, or rights of first refusal to purchase, or rights of repurchase or forfeiture of, all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO or a true and complete copy portion of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse EffectProperty.
(d) Parent Except as set forth on Schedule 4.17(d), all tangible personal property included in the Purchased Assets, including all storage tanks whether deemed personal or a Parent Subsidiary has good real property, is in normal operating condition and valid title to all personal properties repair, ordinary wear and assets necessary tear excepted, are suitable for the purposes for which they are presently used in the conduct of the Parent Business as currently conductedTerminal Business, are structurally sound and free from patent defects.
(e) No special Taxes have been levied and clear no assessments have been made against any portion of all Liens other than Parent Permitted the Real Property which are unpaid (except ad valorem real estate taxes which are not yet due and payable), whether or not they are of public record and whether or not they are payable in installments or have become Liens, except for any failure to have good and valid title that, individually or in the aggregate, Seller has not had and would not reasonably be expected to have received written notice of any planned public improvements that may result in a Parent Material Adverse Effectspecial tax or assessment against any portion of the Real Property.
Appears in 1 contract
Sources: Asset Purchase Agreement (Central Energy Partners Lp)
Real and Personal Property. Except as would not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect on Merchants, (a) Section 6.15(a) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent Merchants or a Parent Subsidiary of Merchants has good and insurable fee simple marketable title to all Parent the real property reflected in the latest audited balance sheet included in the Merchants Reports as being owned by Merchants or a Subsidiary of Merchants or acquired after the date thereof (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business consistent with past practice) (the "Merchants Owned Real PropertyProperties"), in each case free and clear of all Liens other than Liens, except (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (Ci) Liens for current Taxes, Taxes and assessments or governmental charges or levies on property not yet delinquent past due or the amount or validity of which are is being contested in good faith and for which adequate reserves have been created in accordance with GAAPby appropriate proceedings, (Dii) Liens for real property Taxes not yet due and payable, (iii) easements, rights of way, and other similar encumbrances, (iii) mechanics’, carriers’', workmen’s, materialmen’s's, repairmen’s 's, warehousemen's and similar carrier's Liens arising in the ordinary course of business and of Merchants consistent with past practice, (Eiv) restrictions on transfers under applicable Securities Laws, or (v) such imperfections or irregularities of title or Liens which would not, individually or in the aggregate, reasonably be expected to as do not materially and adversely affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such assets as they are presently used or intended to be used in connection with the Parent Business properties (the items in clauses (Ai) through (Ev), collectively, “Parent "Permitted Liens”) "), and (iib) there are no reversion rights, outstanding options or rights is the lessee of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments all leasehold estates reflected in the Parent Balance Sheet latest audited financial statements included in such Merchants Reports or incurred acquired after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity thereof (except for leases that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale have expired by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of their terms since the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract thereof) (collectively, in each case together collectively with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining theretoMerchants Owned Properties, the “Parent Optioned "Merchants Real Property”"). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liensof any nature whatsoever, except for Permitted Liens or any failure encumbrances on a landlord's fee title which do not materially adversely affect Merchants' or its Subsidiary's, as applicable, present use of such property, and is in possession of the properties purported to have good be leased thereunder, and each such lease is valid title thatwithout Default thereunder by the lessee or, individually or in to the aggregateKnowledge of Merchants, the lessor. There are no pending or, to the Knowledge of Merchants, threatened condemnation proceedings against the Merchants Real Property. Merchants has not had previously made available to Community a true and would not reasonably be expected to have a Parent Material Adverse Effectcomplete list of all Merchants Real Property as of the date of this Agreement.
Appears in 1 contract
Real and Personal Property. (a) Section 6.15(a3.15(a) of the Parent Company Disclosure Letter sets forth a true correct and complete list, as of the date hereof, list of all real property and interests in real property owned by Parent the Company or any Parent Company Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”), and identifies for each the address and current use thereof. As Except as set forth in Section 3.15(a) of the date hereofCompany Disclosure Letter, (i) Parent the Company or a Parent applicable Company Subsidiary has good and insurable fee simple marketable title to all Parent Owned Real Property, in each case Property owned by the Company or such Company Subsidiary free and clear of all Liens Encumbrances (other than Permitted Encumbrances). Except as set forth in Section 3.15(a) of the Company Disclosure Letter, all improvements on Owned Real Property and the operations therein conducted conform in all respects to health, fire, safety, zoning, building and other applicable Laws or judgment, order or decree. All of the Owned Real Property and buildings, improvements, structures and fixtures thereon (Ai) Liens securing indebtedness reflected are in the Parent Financial Statementsgood operating condition and repair, normal wear and tear excepted, (Bii) Liens consisting are fit for the uses to which they are being put, (iii) do not encroach on any real property not owned or leased by the Company or a Company Subsidiary (iv) and its current use, occupancy and operation by the Company or a Company Subsidiary and the buildings, improvements and structures located thereon do not (a) constitute a nonconforming use or structure under any applicable building, zoning, subdivision or other land use or similar requirements of zoning Laws, or planning (b) otherwise materially violate or conflict with any covenants, conditions, restrictions or contractual obligations, including the requirements of any applicable Encumbrances thereto. Except as set forth in Section 3.15(a) of the Company Disclosure Letter, none of the Owned Real Property is subject to any lease, option to purchase, right of first refusal, purchase agreement, or, except for the Permitted Encumbrances, the grant to any Person of any right relating to the use, occupancy or enjoyment of such property or any portion thereof; and, any use restrictions, permitsexceptions, easements, covenants and other restrictions reservations or limitations on encumbering the use Owned Real Property have not in any material respect impaired the Company’s or occupancy of real property or irregularities in title thereto, which do not materially impair the applicable Company Subsidiary’s current use of such Owned Real Property.
(b) Section 3.15(b) of the Company Disclosure Letter sets forth, as of the Execution Date, a true and correct list of each real property lease or sublease entered into by the Company or any Subsidiary (each such lease or sublease, together with any amendments and modifications thereto, the “Leases” and the real property subject to such Leases is sometimes referred to herein as it the “Leased Real Property”). The Company or one of its Subsidiaries holds a legal, valid, binding, and enforceable leasehold interest under such Leases, free and clear of all Encumbrances other than Permitted Encumbrances. Each Lease is presently used a valid and binding obligation on the Company or intended its Subsidiary, and to be used the Knowledge of the Company, the other parties thereto, has not expired and is enforceable and in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith full force and for which adequate reserves have been created effect in accordance with GAAPits terms, subject to the Bankruptcy and Equity Exception. Neither the Company nor its Subsidiaries has delivered or received any notice of any default or breach of any Lease which has not been cured and the Company or the applicable Subsidiary is not currently in holdover under any of the Leases. The Company has made available to Parent true and correct copies of the Leases.
(c) Except as set forth in Section 3.15(b) of the Company Disclosure Letter, (Di) mechanics’neither the Company nor any Company Subsidiary is a party to or obligated under or is aware of any option, carriers’right of first refusal or other contractual right to sell, workmen’sdispose of or lease, materialmen’ssublease or license any property subject to a Lease or any interest therein (other than pursuant to this Agreement), repairmen’s (ii) neither the Company nor any Company Subsidiary is a party to or is aware of any agreement or option to purchase any real property, improvements thereon, or interest therein except as set forth in any Lease and similar Liens arising (iii) except for the Company or the applicable Company Subsidiary, any landlord under the applicable Lease and any Permitted Encumbrances, no Person has any right to use, occupy, possess or lease, or is using, occupying, possessing subleasing or leasing, all or any portion of the Leased Real Property.
(d) Neither the Company nor any of the Company Subsidiaries have any knowledge of pending or threatened zoning application or Litigation or condemnation, eminent domain, or taking Litigation with respect to any Owned Real Property or Leased Real Property or any building or improvement thereon, and neither the Company nor any Company Subsidiary has received any written notice or other communication, of any violation of applicable Laws or such pending or threatened Litigation.
(e) Except for assets sold, consumed or disposed of in the ordinary course of business since December 31, 2021 and (Eas listed on Section 3.15(e) Liens which would notof the Company Disclosure Letter, individually the Company and its Subsidiary own good title to, or hold a valid leasehold interest in the aggregateor license to, reasonably be expected to materially and adversely affect the use all of such assets as they are presently used or intended their material tangible personal property shown to be used in connection with owned or leased by it on the Parent Business (Financial Statements for the items in clauses (A) through (E)fiscal year ended on December 31, collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options 2021 or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred acquired after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conductedthereof, free and clear of all Liens Encumbrances, other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse EffectEncumbrances.
Appears in 1 contract
Sources: Merger Agreement (Monterey Capital Acquisition Corp)
Real and Personal Property. (a) Section 6.15(a) of the Parent Disclosure Letter sets forth a true The Acquired Companies do not own any real property, and complete listsince December 31, as of the date hereof2020, of all have not owned, directly or indirectly, any real property and or interests in real property owned by Parent property. No Acquired Company is obligated under, or is a party to, any Parent Subsidiary (collectivelyoption, in each case together with all buildingsright of first refusal or other contractual arrangement to which an Acquired Company is a party to purchase, structuresacquire, improvements and fixtures thereon and all easements and rights sell, assign or dispose of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in each case free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, covenants and other restrictions or limitations on the use or occupancy of any real property or irregularities in title thereto, which do any portion thereof or interest therein.
(b) Except as would not materially impair the use of such property as it is presently used or intended reasonably be expected to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would notbe, individually or in the aggregate, material to the Acquired Companies, taken as a whole, (i) each Acquired Company has a good and valid leasehold, subleasehold, license or other similarly applicable interest in each of the real property leased, subleased, licensed or otherwise used or occupied by such Acquired Company (the “Company Leased Real Property”) under each real property lease, sublease or license entered into by such Acquired Company (including all amendments thereto and guaranties and assignments thereof, the “Company Leases”), (ii) assuming each Company Lease constitutes the legal, valid and binding agreement of the other party thereto, each Company Lease is a valid and binding obligation on the Acquired Company party thereto and is enforceable and in full force and effect in accordance with its terms, subject to applicable bankruptcy, insolvency, examinership, fraudulent transfer, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally, (iii) no Acquired Company is in material default or breach of any such Company Lease, nor, to the Knowledge of the Company, is any other party thereto, and no event has occurred which, with notice, lapse of time or both, would constitute a material default or breach of any such Company Lease by any Acquired Company or the other party thereto, and (iv) with respect to each Company Lease listed in Section 3.08(a)(xii) of the Company Disclosure Schedule, there are no subleases, licenses, assignments, occupancy agreements or other similar Contracts under which any Acquired Company grants to any Person, other than to another Acquired Company, the right of use or occupancy of all or any portion of any Company Leased Real Property other than those subleases, licenses, assignments, occupancy agreements or other similar Contracts listed in Section 3.08(a)(xii) of the Company Disclosure Schedule. Except as has not been, or would not reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment thatbe, individually or in the aggregate, has not had material to the Acquired Companies, taken as a whole, the Company Leased Real Property constitutes all of the real property used by the Acquired Companies, is in good operating condition and in a state of good maintenance and repair, subject to normal wear and tear, and is adequate for the conduct of the business of the Acquired Companies.
(c) Except for assets disposed of by the Acquired Companies in the ordinary course of business consistent with past practice since the Balance Sheet Date, each Acquired Company owns good title to, or holds pursuant to valid and enforceable leases of, all of the tangible personal property owned or leased by it, free and clear of all Liens, other than Permitted Liens, except as would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services thatbe, individually or in the aggregate, has not had and material to the Acquired Companies, taken as a whole. Except as would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto thatbe, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title material to the leasehold estates Acquired Companies, taken as a whole, such personal property is free of material defects and in all Parent Leased Real Propertygood operating condition and in a state of good maintenance and repair, in each case free subject to normal wear and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser tear, and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary adequate for the conduct of the Parent Business as currently conducted, free and clear business of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse EffectAcquired Companies.
Appears in 1 contract
Sources: Merger Agreement (Aon PLC)
Real and Personal Property. (a) Section 6.15(aSchedule 4.10(a) of the Parent Disclosure Letter sets forth a true the address and complete list, as description of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, With respect to each Owned Real Property: (i) Parent the Company or a Parent Subsidiary one of its Subsidiaries has good and insurable indefeasible fee simple title to all Parent such Owned Real Property, in each case free and clear of all Liens other than Encumbrances (A) Liens securing indebtedness reflected except for the Encumbrances described in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (ESection 4.10(c)(i)-(vii), collectivelyas applicable), “Parent Permitted Liens”) and (ii) except as set forth in Schedule 4.10(a), none of the Company nor any of its Subsidiaries has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; and (iii) other than the rights of Parent and MergerCo pursuant to this Agreement, there are no reversion rights, outstanding options rights of first offer or rights of first refusal in favor of any other Person or similar contracts or commitments to purchase, lease, occupy or otherwise utilize the Parent purchase such Owned Real Property or any portion thereof or interest therein that would reasonably be expected therein.
(b) Schedule 4.10(b) sets forth a list of all material leasehold or subleasehold estates and other rights to materially and adversely affect use or occupy any land, buildings, structures, improvements, fixtures or other interest in real property held by the use Company or any of such Parent Owned its Subsidiaries (the “Leased Real Property”). All leases (including subleases) relating to Leased Real Property as it is presently used or intended to be used in connection with are identified on Schedule 4.10(b) (each a “Lease” and collectively, the Parent Business“Leases”). To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with With respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaideach Lease listed on Schedule 4.10(b), except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment thatas would not have, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Company Material Adverse Effect. With respect :
(i) the Company or a Subsidiary of the Company, as applicable, have valid and enforceable leasehold interests to any Parent Owned the leasehold estate in the Leased Real Property that 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;
(ii) each of said Leases has been duly authorized and executed by the Company or such Subsidiary, as applicable, and is in full force and effect; and
(iii) neither the Company nor such Subsidiary is in default under development any of said Leases, 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 default by the Company or such Subsidiary, as applicable.
(c) Except as set forth on Schedule 4.10(c) or as specifically disclosed in the Base Balance Sheet, the Company and each of its Subsidiaries have good and marketable title to, or a subdivision or communityvalid leasehold interest in, such subdivisions or communities under development are or will be supplied with utilitiesall of their property and assets, including electricitythose properties and assets shown on the Base Balance Sheet or acquired after the date of the Base Balance Sheet, waterfree and clear of any Encumbrances, telephoneexcept for (i) Encumbrances disclosed in the Base Balance Sheet for Taxes, sanitary sewer fees, assessments or other governmental charges which are not delinquent or remain payable without penalty (as to which adequate reserves have been established in the Financial Statements), (ii) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other similar Encumbrances arising in the ordinary course of business, (iii) Encumbrances consisting of pledges or deposits required in the ordinary course of business and storm sewerin respect of statutory obligations in connection with workers’ compensation, unemployment insurance and other services necessary social security legislation, (iv) 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 intended operation purpose of financing (or refinancing) all or any part of the cost of acquiring such subdivisions or communitiesproperty, all of which utilities shall be released as of immediately prior to the Closing, (v) Encumbrances securing capital lease obligations, (vi) Encumbrances set forth on Schedule 4.10(c)(vi), all of which will be released concurrently with the Closing and services (vii) with respect to the Owned Real Property, Encumbrances of record or imperfections of title which are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services thatnot, individually or in the aggregate, has material in character, amount or extent and which do not had and materially detract from the value or materially interfere with the present use of the assets subject thereto or affected thereby or which would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto thathave, individually or in the aggregate, has had or would reasonably be expected to have a Parent Company Material Adverse Effect.
, and such property and assets are in good condition and repair (cordinary wear and tear expected) Section 6.15(c) and are fit for use in the ordinary course of business of the Parent Disclosure Letter sets forth a true Company and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effectits Subsidiaries.
(d) Parent The assets and properties (whether real or a Parent Subsidiary has good personal, tangible or intangible) owned or leased by the Company and valid title to its Subsidiaries constitute all personal of the assets and properties and assets necessary for the conduct of the Parent Business their businesses as currently presently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 1 contract
Sources: Agreement and Plan of Merger (WII Components, Inc.)
Real and Personal Property. (a) Except as disclosed in Section 6.15(a4.14(a) of the Parent Company Disclosure Letter sets forth a true and complete listSchedule, as each of the date hereofCompany and the Company Subsidiaries has good and indefeasible title to, of or valid leasehold interests in, all real property its properties and interests in real property owned by Parent or assets, free and clear of, and not subordinate to, any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all Encumbrances other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, than (i) Parent liens securing Taxes and other ordinary course governmental obligations which are not yet due and payable, may be paid without penalty or a Parent Subsidiary has are being contested in good and insurable fee simple title to all Parent Owned Real Propertyfaith through appropriate proceedings, in each case free and clear of all Liens (ii) mechanics', carriers', workmen's, warehousemen's, repairmen's or other than (A) Liens securing indebtedness reflected similar liens arising in the Parent Financial Statementsordinary course of business from amounts that are not yet due and payable and that would not, (B) Liens consisting of zoning individually or planning restrictionscollectively, permits, easements, covenants and other restrictions or limitations on materially detract from the use or occupancy value of real the property subject thereto or irregularities collectively would not reasonably be expected to result in title a Company Material Adverse Effect or that are being contested in good faith, with bond, in appropriate proceedings, (iii) liens arising under any original purchase price conditional sales contracts with third parties, (iv) easements, rights-of-way, covenants, restrictions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not material in amount and that do not, in any case, materially detract from the use or value of the property subject thereto, (v) any liens set forth in any applicable lease agreement with respect thereto and (vi) other minor imperfections of title, restrictions or encumbrances not related to indebtedness, if any, which do not materially impair the ownership, operation or continued use of such property as it is presently used or intended the specific asset to be used in connection with the Parent Business, which they relate (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent the "Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse EffectEncumbrances").
(b) Except as set forth on Section 6.15(b4.14(b) of the Parent Company Disclosure Letter Schedule, there are no past or present, and to the Company's knowledge threatened, claims, actions, causes of action, investigations or notices, whether written or oral, related in any way whatsoever to the ownership, operation, use, possession, leasing, or management of, or investment in, any real property that the Company or any of the Company Subsidiaries owns or has owned (or is deemed to own or have owned) (collectively, the "Owned Real Property"), and the Company and Company Subsidiaries have no retained, assumed, or contingent liability of any kind related to such Owned Real Property.
(c) Section 4.14(c) of the Company Disclosure Schedule sets forth a true and complete list, as of the date hereof, list of all interests in real property held leased or subleased by Parent the Company or a Parent any Company Subsidiary pursuant to an option or purchase Contract a Real Property Lease (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned "Leased Real Property”Property ). Parent or a Parent Subsidiary has a valid option to acquire Each of the Company and the Company Subsidiaries enjoys peaceful and undisturbed possession under all Parent Optioned Real Property pursuant Leases and there are no material disputes or oral agreements in effect as to and in accordance with the terms such Real Property Leases. Except as disclosed on Section 4.14(c) of the relevant option or purchase ContractCompany Disclosure Schedule, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract no landlord under which the Parent Optioned any Real Property is held. There is no default under Lease has any such Contract by Parent claims pending, or any Parent Subsidiary or, to the knowledge of Parentthe Company or any Company Subsidiary, threatened, against the Company or any Company Subsidiary as a tenant thereunder. Neither the Company nor any Company Subsidiary is a party to any lease, assignment or similar arrangement under which the Company or any Company Subsidiary is a lessor, sublessor, assignor or otherwise makes available for use by any other third party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) any portion of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear except as set forth on Section 4.14(c) of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse EffectCompany Disclosure Schedule.
(d) The Company and the Company Subsidiaries have made available to Parent true and complete copies of the Real Property Leases (including all amendments, modifications and supplements thereto).
(e) To the knowledge of the Company or any Company Subsidiary, the obligations of the Company or the Company Subsidiaries, as applicable, with regard to all applicable easements, covenants, and restrictions encumbering the Leased Real Property have been and are being performed in a Parent proper and timely manner by the Company and the Company Subsidiaries. Except as set forth on 4.14(e) of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary is currently in default under any agreement, order, judgment or decree relating to the Leased Real Property, and no conditions or circumstances exist which, with the giving of notice or passage of time, would constitute a default or breach with respect to the foregoing.
(f) The Company and the Company Subsidiaries have obtained, and currently maintain, all appropriate certificates of occupancy, licenses, permits, and approvals to use and operate the Leased Real Property in the manner in which the Leased Real Property is currently being used and operated and neither the Company nor any Company Subsidiary has good received notice of any threatened suspension, modification or cancellation of such certificates of occupancy, licenses, permits, and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effectapprovals.
Appears in 1 contract
Real and Personal Property. (ai) Section 6.15(aThe Target does not own any real property.
(ii) of the Parent Disclosure Letter sets forth a true Schedule 4(k)(ii) lists and complete list, as of the date hereof, of describes briefly all real property and interests in real property owned by Parent leased or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing subleased to the benefit thereof Target. The Sellers have delivered to the Buyer correct and all other appurtenances complete copies of the leases and real property rights pertaining thereto, the “Parent Owned Real Property”subleases listed in Schedule 4(k)(ii). As of the date hereof, (i) Parent or a Parent Subsidiary has good With respect to each lease and insurable fee simple title to all Parent Owned Real Property, sublease listed in each case free and clear of all Liens other than Schedule 4(k)(ii):
(A) Liens securing indebtedness reflected the lease or sublease is legal, valid, binding, enforceable, and in the Parent Financial Statements, full force and effect;
(B) Liens consisting of zoning the lease or planning restrictions, permits, easements, 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 of such property as it is presently used or intended sublease will continue to be used legal, valid, binding, enforceable, and in connection with full force and effect on identical terms following the Parent Business, consummation of the transactions contemplated hereby;
(C) Liens for current Taxesno party to the lease or sublease is in breach or default, assessments and no event has occurred which, with notice or governmental charges lapse of time, would constitute a breach or levies on property not yet delinquent default or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAPpermit termination, modification, or acceleration thereunder;
(D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in no party to the ordinary course of business and lease or sublease has repudiated any provision thereof;
(E) Liens which would notthere are no disputes, individually oral agreements, or forbearance programs in effect as to the aggregatelease or sublease;
(F) with respect to each sublease, reasonably be expected to materially the representations and adversely affect the use of such assets as they are presently used or intended to be used warranties set forth in connection with the Parent Business (the items in clauses subsections (A) through (E)) above are true and correct with respect to the underlying lease;
(G) the Target has not assigned, collectivelytransferred, “Parent Permitted Liens”conveyed, mortgaged, deeded in trust, or encumbered any interest in the leasehold or subleasehold;
(H) all facilities leased or subleased thereunder have received all approvals of governmental authorities (including licenses and (iipermits) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used required in connection with the Parent Business. To the knowledge of Parentoperation thereof and have been operated and maintained in accordance with applicable laws, there is no pending rules, and regulations;
(I) all facilities leased or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development subleased thereunder are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, utilities and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.said facilities; and
(bJ) Section 6.15(b) the owner of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent facility leased or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary subleased has good and valid marketable title to the leasehold estates in all Parent Leased Real Property, in each case free and clear parcel of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conductedreal property, free and clear of all Liens any Security Interest, easement, covenant, or other than Parent Permitted Liensrestriction, except for any failure to have good installments of special easements not yet delinquent and valid title thatrecorded easements, individually covenants, and other restrictions which do not impair the current use, occupancy, or in value, or the aggregatemarketability of title, has not had and would not reasonably be expected to have a Parent Material Adverse Effectof the property subject thereto.
Appears in 1 contract
Real and Personal Property. Except as would not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect on Merchants, (a) Section 6.15(a) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent Merchants or a Parent Subsidiary of Merchants has good and insurable fee simple marketable title to all Parent the real property reflected in the latest audited balance sheet included in the Merchants Reports as being owned by Merchants or a Subsidiary of Merchants or acquired after the date thereof (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business consistent with past practice) (the “Merchants Owned Real PropertyProperties”), in each case free and clear of all Liens other than Liens, except (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (Ci) Liens for current Taxes, Taxes and assessments or governmental charges or levies on property not yet delinquent past due or the amount or validity of which are is being contested in good faith and for which adequate reserves have been created in accordance with GAAPby appropriate proceedings, (Dii) Liens for real property Taxes not yet due and payable, (iii) easements, rights of way, and other similar encumbrances, (iii) mechanics’, carriers’, workmen’s, materialmenrepairmen’s, repairmenwarehousemen’s and similar carrier’s Liens arising in the ordinary course of business and of Merchants consistent with past practice, (Eiv) restrictions on transfers under applicable Securities Laws, or (v) such imperfections or irregularities of title or Liens which would not, individually or in the aggregate, reasonably be expected to as do not materially and adversely affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such assets as they are presently used or intended to be used in connection with the Parent Business properties (the items in clauses (Ai) through (Ev), collectively, “Parent Permitted Liens”) ), and (iib) there are no reversion rights, outstanding options or rights is the lessee of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments all leasehold estates reflected in the Parent Balance Sheet latest audited financial statements included in such Merchants Reports or incurred acquired after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity thereof (except for leases that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale have expired by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of their terms since the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract thereof) (collectively, in each case together collectively with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining theretoMerchants Owned Properties, the “Parent Optioned Merchants Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liensof any nature whatsoever, except for Permitted Liens or any failure encumbrances on a landlord’s fee title which do not materially adversely affect Merchants’ or its Subsidiary’s, as applicable, present use of such property, and is in possession of the properties purported to have good be leased thereunder, and each such lease is valid title thatwithout Default thereunder by the lessee or, individually or in to the aggregateKnowledge of Merchants, the lessor. There are no pending or, to the Knowledge of Merchants, threatened condemnation proceedings against the Merchants Real Property. Merchants has not had previously made available to Community a true and would not reasonably be expected to have a Parent Material Adverse Effectcomplete list of all Merchants Real Property as of the date of this Agreement.
Appears in 1 contract
Real and Personal Property. (a) Section 6.15(aSCHEDULE 3.07(a) of the Parent Disclosure Letter sets forth a true true, correct and complete list, as of the date hereof, schedule of all real property and interests in owned by Cerulean or any of the Cerulean Subsidiaries (the "Cerulean Real Property"). Cerulean or one of the Cerulean Subsidiaries is the owner of the title to the real property owned by Parent or any Parent Subsidiary (collectively, in each case together with described on SCHEDULE 3.07(a) and to all of the buildings, structures, structures and other improvements and fixtures located thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in each case free and clear of all Liens any mortgage, deed of trust, lien, pledge, security interest, claim, lease, charge, option, right of first refusal, easement, restrictive covenant, encroachment or other than (Asurvey defect, encumbrance or other restriction or limitation except for matters on SCHEDULE 3.07(a) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning and any exceptions or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would notwhich, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business would not have a Cerulean Material Adverse Effect (the items in clauses (A) through (E), collectively, “Parent "Cerulean Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect").
(b) Section 6.15(bSCHEDULE 3.07(b) of the Parent Disclosure Letter sets forth a true true, correct and complete listschedule of all material leases, as subleases, licenses or other agreements under which Cerulean or any of the date hereofCerulean Subsidiaries uses or occupies, of all interests or has the right to use or occupy, now or in the future, any real property held by Parent or a Parent Subsidiary pursuant to improvements thereon (the "Cerulean Real Property Leases"). Except for matters listed on SCHEDULE 3.07(b), Cerulean or one of the Cerulean Subsidiaries holds the leasehold estate under an option or purchase Contract (collectively, interest in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Cerulean Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case Lease free and clear of all Liens material liens, encumbrances and other than Parent Permitted Liensrights of occupancy, except (i) liens for current taxes not yet due and payable, (ii) such imperfections of title, liens or easements as do not and will not materially detract from or interfere with the use of the properties subject thereto or affected thereby, or otherwise materially impair the business operations involving such properties or (iii) those material liens, encumbrances and other rights of occupancy which would not have a Cerulean Material Adverse Affect. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Except as set forth on SCHEDULE 3.07(b), all Cerulean Real Property Leases have been delivered to WellPoint and are valid and binding on Cerulean or the Cerulean Subsidiary party thereto and are valid and binding on the lessors thereunder in accordance with their respective terms and to Cerulean's knowledge, there is held. There is no default not under any such Contract by Parent Cerulean Real Property Lease any existing default, or any Parent Subsidiary orcondition, to the knowledge event or act which with notice or lapse of Parenttime, by any other party thereto thator both, would constitute such a default, which in either case, considered individually or in the aggregateaggregate with all such other Cerulean's Real Property Leases under which there is such a default, has had condition, event or act, would reasonably be expected to have a Parent Cerulean Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Wellpoint Health Networks Inc /De/)
Real and Personal Property. (a) Section 6.15(a) of the Parent Disclosure Letter sets forth a true and complete list, Except as of the date hereof, of all real property and interests in real property owned by Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Owned Real Property”). As of the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in each case free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith and for which adequate reserves have been created in accordance with GAAP, (D) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in the ordinary course of business and (E) Liens which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the use of such assets as they are presently used or intended to be used in connection with the Parent Business (the items in clauses (A) through (E), collectively, “Parent Permitted Liens”) and (ii) there are no reversion rights, outstanding options or rights of first refusal in favor of any other Person to purchase, lease, occupy or otherwise utilize the Parent Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially and adversely affect the use of such Parent Owned Real Property as it is presently used or intended to be used in connection with the Parent Business. To the knowledge of Parent, there is no pending or threatened condemnation or eminent domain proceeding with respect to any Parent Owned Real Property. No developer-related charges or assessments imposed by any Governmental Entity or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred after the date of the Parent Balance Sheet in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had had, and would not reasonably be expected to have have, a Parent Material Adverse Effect. With respect , the applicable Debtor, or the applicable Subsidiary of the Debtors, has good, marketable and exclusive fee simple title to, and the valid and enforceable power and unqualified right to any Parent use and sell, transfer, convey or assign each parcel of Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of all Liens other than Parent Permitted Liens. The Debtors or their respective Subsidiaries have not leased, licensed or otherwise granted any Person the right to use or occupy the Owned Real Property, which lease, license or grant is currently in effect.
(b) Except as has not had, and would not reasonably be expected to have, a Material Adverse Effect, the applicable Debtor, or the applicable Subsidiary of the Debtors, has a valid, binding and enforceable leasehold interest under each lease, sublease, license or other similar document or instrument under which such Leased Real Property is occupied or used (individually, a “Real Property Lease” and collectively, the “Real Property Leases”), free and clear of all Liens other than Permitted Liens, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditor’s rights generally or general principles of equity, including the Chapter 11 Cases and any limitations of the Chapter 11 Cases as may be applied under non-U.S. law. Except as has not had, or would not reasonably be expected to have, a Material Adverse Effect, each Real Property Lease is in full force and effect and is the valid, binding and enforceable obligation of each party thereto in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditor’s rights generally or general principles of equity, including the Chapter 11 Cases. None of the Debtors or their Subsidiaries has received written notice of any good faith claim asserting that such leases are not in full force and effect, except for any leases in respect of which the failure to have good be in full force and valid title thateffect would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c) There are no outstanding agreements, options, rights of first offer or rights of first refusal, or other contractual (or other) right or obligation on the part of any party to purchase, sell, assign or dispose any Real Property. There are not pending or, to the Knowledge of the Company, threatened any condemnation proceedings with respect to any Real Property. The Real Property constitutes all interests in real property (i) currently used, occupied or held for use in connection with the business of the Debtors and their respective Subsidiaries, as presently conducted, and (ii) necessary for the continued operation of the business of the Debtors and their respective Subsidiaries, as presently conducted.
(d) Each of the Debtors and each of their respective Subsidiaries has not had valid title to all of its respective personal property and assets, except for Permitted Liens, and except where the failure (or failures) to have such title would not reasonably be expected to have have, individually or in the aggregate, a Parent Material Adverse Effect. To the Knowledge of the Company, all such personal property and assets are free and clear of Liens, other than Permitted Liens. Other than as a consequence of the Chapter 11 Cases, each of the Debtors and each of their respective Subsidiaries owns or possesses the right to use all of its personal property, and all licenses and rights with respect to any of the foregoing used in the conduct of their businesses, without any conflict (of which any of the Debtors and any of their Subsidiaries has been notified in writing) with the rights of others, and free from any burdensome restrictions on the present conduct of the Debtors or their respective Subsidiaries, as the case maybe, except where such conflicts and restrictions would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Sources: Backstop Commitment Agreement (Spirit Airlines, Inc.)
Real and Personal Property. (a) Section 6.15(a3.18(a) of the Parent MGEX Disclosure Letter sets Schedule lists the real property owned by MGEX. With respect to each parcel of real property listed on Section 3.18(a) to the MGEX Disclosure Schedule (together with the Improvements located thereon, the “Owned Real Property”):
(i) MGEX owns good and marketable fee simple title to such parcel of Owned Real Property, free and clear of any lien (other than mechanic’s liens filed in the ordinary course of business or as set forth a true on Section 3.18(e) of the MGEX Disclosure Schedules), pledge, security interest or other encumbrance as of the Closing Date, other than (A) real estate Taxes and complete listinstallments of special assessments not yet due or delinquent, (B) easements, utility easements, covenants, conditions and restrictions of record as of the date hereof, none of which individually or in the aggregate, interfere in any material respect with the use or occupancy of the Owned Real Property or any portion thereof in the operation of the business of MGEX or the Exchange as currently conducted thereon, (C) building restrictions, zoning restrictions and other similar legal restrictions, (D) matters which would be disclosed by or identified in an accurate survey or an inspection of each parcel of Owned Real Property, (E) the encumbrances and title exceptions identified in the most recent Title Commitment dated as of July 13, 2020 and (F) as set forth on Section 3.18(a)(i) of the MGEX Disclosure Schedules.
(ii) MGEX has delivered to Acquiror or made available in the Data Room correct and complete copies of all leases, subleases, licenses, concessions and other agreements granting to any party or parties (each a “Tenant” and collectively the “Tenants”) the right of use or occupancy of any portion of such parcel of Owned Real Property (together with all amendments and guarantees thereto, including, any agreements by MGEX to defer receipt of any payments thereunder, any new leases, subleases, licenses, concessions and other agreements granting the right of use or occupancy of any portion of the Owned Real Property entered into following the date hereof in accordance with the terms and provisions of this Agreement, with all amendment and guarantees thereto, the “Leases”). Section 3.18(a)(ii) of the MGEX Disclosure Schedule sets forth a summary of the space occupied by such Tenant, all monthly rents payable by all Tenants and expiration dates of such Leases. Each Lease is legal, valid, binding and enforceable, and is in full force and effect, subject to the Bankruptcy and Equity Exception. MGEX is not in default or otherwise in breach under any such agreement and, to MGEX’s knowledge, no other party is in default or otherwise in breach thereof and there exist no outstanding disputes between MGEX and such other party. No security deposit or portion thereof deposited with respect to any Lease has been applied in respect of a breach of or default under such Lease that has not been redeposited in full. MGEX has not collaterally assigned or granted any other lien in any Lease or any interest therein.
(b) Section 3.18(b) of the MGEX Disclosure Schedule sets forth a list of all real property leased by MGEX or subleased by MGEX as tenant or subtenant thereunder (together with the Improvements located thereon, the “Leased Real Property,” and, together with the Owned Real Property, the “Real Property”). All leases or subleases relating to Leased Real Property are identified on Section 3.18(b) of the MGEX Disclosure Schedule (together with all amendments and interests guarantees thereto, each an “MGEX Lease” and collectively, the “MGEX Leases”) and in real property owned by Parent the Data Room, MGEX has made available to Acquiror a correct and complete copy of each MGEX Lease, as amended to date. Each MGEX Lease is legal, valid, binding and enforceable, and is in full force and effect, subject to the Bankruptcy and Equity Exception. MGEX is not in default or otherwise in breach under any MGEX Lease and, to MGEX’s knowledge, no other party is in material default or otherwise in material breach thereof. No security deposit or portion thereof deposited with respect to any MGEX Lease has been applied in respect of a breach of or default under such MGEX Lease that has not been redeposited in full. MGEX has not collaterally assigned or granted any other lien in any MGEX Lease or any Parent Subsidiary interest therein.
(collectivelyc) Section 3.18(c) of the MGEX Disclosure Schedules sets forth a true and correct schedule of all brokerage agreements, commission agreements and any other similar fee agreements, including any amendments thereto, with any brokers, persons, firms or agents engaged by MGEX in each case together the negotiation of the Leases or the MGEX Leases and MGEX has not had any other signed agreements with any other broker, person, firm or agent in the negotiation of the Leases or the MGEX Leases. Other than as set forth on Section 3.18(c) of the MGEX Disclosure Schedules, no broker, agent, person, firm or entity is entitled to any commission or fee from MGEX in connection with the Leases or the MGEX Leases.
(d) There is no pending or, to MGEX’s knowledge, proceeding threatened in writing regarding condemnation or other eminent domain proceeding (or sale or other disposition of any Real Property in lieu of condemnation) affecting (i) any Owned Real Property or (ii) to MGEX’s knowledge, any Leased Real Property. The current use and occupancy of the Owned Real Property and the operation of the business of MGEX and, to MGEX’s knowledge, the Tenants, as currently conducted thereon does not violate in any material respect any easement, covenant, condition, restriction or similar provision in any instrument of record affecting such Owned Real Property. There are no unrecorded agreements affecting the Owned Real Property. MGEX is not in default or otherwise in breach under easements, utility easements, covenants, conditions and restrictions or other agreements of record affecting the Owned Real Property as of the date hereof, and, to MGEX’s knowledge, no other party is in material default or otherwise in material breach thereof.
(e) Except as set forth on Section 3.18(e) of the MGEX Disclosure Schedules:
(i) all buildings, structures, improvements and fixtures thereon fixtures, improvements, machinery, building systems, equipment, personal property, other tangible assets and all easements and rights components of way pertaining the foregoing, including all utility service thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, (the “Parent Owned Real PropertyImprovements”). As of , included in the date hereof, (i) Parent or a Parent Subsidiary has good and insurable fee simple title to all Parent Owned Real Property, in each case free and clear of all Liens other than (A) Liens securing indebtedness reflected in the Parent Financial Statements, (B) Liens consisting of zoning or planning restrictions, permits, easements, 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 of such property as it is presently used or intended to be used in connection with the Parent Business, (C) Liens for current Taxes, assessments or governmental charges or levies on property not yet delinquent or which are being contested in good faith condition and repair and sufficient for which adequate reserves have been created in accordance with GAAP, the operation of the business of MGEX and the Exchange;
(Dii) mechanics’, carriers’, workmen’s, materialmen’s, repairmen’s and similar Liens arising in there are no facts or conditions affecting any of the ordinary course of business and (E) Liens which would notImprovements that would, individually or in the aggregate, reasonably be expected to materially and adversely affect interfere in any material respect with the use or occupancy of such assets the Improvements or any portion thereof in the operation of the business of MGEX or the Exchange as they currently conducted thereon; and
(iii) there are presently used no third party contracts in effect to which MGEX is a party for the performance of any repairs, work and/or capital improvements with respect to the Real Property and there is currently no ongoing construction work in, on or intended to be about any Real Property other than immaterial maintenance and repairs being performed in the ordinary course of business.
(f) The use and occupancy of any and all Owned Real Property, together with the Improvements, located upon or used in connection with the Parent Business (the items Owned Real Property, are in clauses (A) through (E)compliance, collectivelyin all material respects, “Parent Permitted Liens”) with all applicable Laws and (ii) there are no reversion rightsall applicable insurance requirements, outstanding options or rights of first refusal in favor including those pertaining to zoning matters and building codes. To MGEX’s knowledge, MGEX’s use and occupancy of any and all Leased Real Property is in compliance, in all material respects, with all applicable Laws.
(g) Except as set forth on Section 3.18(g) of the MGEX Disclosure Schedules, all water, oil, gas, electrical, steam, compressed air, telecommunications, sewer, storm and waste water systems and other Person utility services or systems for the Owned Real Property have been installed and are operational and sufficient for the operation of the business conducted by all Persons occupying the Owned Real Property including MGEX, the Exchange and the Tenants as currently conducted thereon.
(h) The Owned Real Property is occupied and utilized by MGEX and the Tenants under valid and current certificates of occupancy, permits, licenses and the like, and the transactions contemplated hereby will not invalidate or require the issuance of any new or amended certificates of occupancy, permits, licenses or the like.
(i) MGEX has not received written notice from any insurance carrier or insurance rating bureau or similar agency or governmental authority, regarding, nor is there, to purchasethe knowledge of MGEX, leasedangerous, occupy illegal, or otherwise utilize other condition requiring corrective action during the Parent five-year period ending on the date hereof, with respect to the Real Property.
(j) MGEX’s use and occupancy of the Owned Real Property or any portion thereof and the operation of the business of MGEX as currently conducted thereon is not dependent on a “permitted non-conforming use” or interest therein that would reasonably be expected to materially “permitted non-conforming structure” or similar variance, exemption or approval from any governmental authority. To MGEX’s knowledge, the Tenants’ use and adversely affect occupancy of the use of such Parent Owned Real Property or any portion thereof and the operation of the business of the Tenants as it currently conducted thereon is presently used not dependent on a “permitted non-conforming use” or intended “permitted non-conforming structure” or similar variance, exemption or approval from any governmental authority.
(k) Except as set forth on Section 3.18(k) of the MGEX Disclosure Schedules, there are no outstanding options or rights of first refusal, rights of first offer, or other preferential rights to be used purchase, lease or develop any Owned Real Property, any portion thereof or interest therein.
(l) MGEX has made available to Acquiror true and complete copies, to the extent in connection with the Parent Business. possession or control of MGEX, of all the title insurance policies, title reports, surveys, certificates of occupancy, property condition reports, roof reports, appraisals and Permits relating to or otherwise affecting the Real Property and the operations of MGEX.
(m) To the knowledge of ParentMGEX, there none of the Real Property or any portion thereof is no pending or threatened condemnation or eminent domain proceeding located in a flood hazard area (as defined by the Federal Emergency Management Agency).
(n) Except with respect to any Parent Owned Real Property. No developer-related charges leased personal property, MGEX has good title to all of the tangible personal property and assets shown on the Interim Financial Statements or assessments imposed by any Governmental Entity acquired or other Person for improvements (or otherwise) against any Parent Owned Real Property held for development are unpaid, except for charges or assessments reflected in the Parent Balance Sheet or incurred disposed of after the date of the Parent Balance Sheet Interim Financial Statements in the ordinary course of business. No Law or Judgment exists or is pending before a Governmental Entity that restricts the development or sale of Parent Owned Real Property that is currently under development or being held for sale by Parent or any Parent Subsidiary, other than any such Law or Judgment that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. With respect to any Parent Owned Real Property that is under development as a subdivision or community, such subdivisions or communities under development are or will be supplied with utilities, including electricity, water, telephone, sanitary sewer and storm sewer, and other services necessary for the intended operation of such subdivisions or communities, all of which utilities and services are adequate for such operation pursuant to all applicable Laws, other than any failure to supply utilities or services that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(b) Section 6.15(b) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all interests in real property held by Parent or a Parent Subsidiary pursuant to an option or purchase Contract (collectively, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances and real property rights pertaining thereto, the “Parent Optioned Real Property”). Parent or a Parent Subsidiary has a valid option to acquire all Parent Optioned Real Property pursuant to and in accordance with the terms of the relevant option or purchase Contract, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser a true and complete copy of each material option or purchase Contract under which the Parent Optioned Real Property is held. There is no default under any such Contract by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Section 6.15(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereof, of all real property and interests in real property leased to Parent or any Parent Subsidiary (collectively, in each case together with all buildings, structures, improvements and fixtures thereon, the “Parent Leased Real Property”). Parent or a Parent Subsidiary has good and valid title to the leasehold estates in all Parent Leased Real Property, in each case free and clear of all Liens other than Parent Permitted Liens. Parent has made available to Weyerhaeuser and WRECO a true and complete copy of each material lease agreement under which the Parent Leased Real Property is held. There is no default under any such lease by Parent or any Parent Subsidiary or, to the knowledge of Parent, by any other party thereto that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(d) Parent or a Parent Subsidiary has good and valid title to all personal properties and assets necessary for the conduct of the Parent Business as currently conducted, free and clear of any encumbrances. MGEX is the lessee of, and holds valid leasehold interests in, all Liens other than Parent Permitted Liens, except for any failure to have good and valid title that, individually or in personal property set forth on Section 3.18(n) of the aggregate, has not had and MGEX Disclosure Schedule. Except as would not reasonably be expected to have a Parent Company Material Adverse Effect, the assets owned, licensed or leased by MGEX constitute all the assets used in the business of MGEX (including all books, records, computers, computer programs and data processing systems), are in good condition (subject to normal wear and tear and immaterial impairments of value and damage) and are generally suitable for the uses for which they are used in the operation of the business of such Persons.
(o) In the Data Room, MGEX has made available to Acquiror a correct and complete copy of all material service and maintenance Contracts (“Service Contracts”) to which MGEX is a party relating to the Real Property, as amended to date. Each Service Contract is legal, valid, binding and enforceable, and is in full force and effect. MGEX is not in default or otherwise in breach under any Service Contract and, to MGEX’s knowledge, no other party is in material default or otherwise in material breach thereof.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Miami International Holdings, Inc.)