Real and Personal Property. (i) Set forth on Schedule 4.2(t)(i) of the Company Disclosure Memorandum is a true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Properties”). Except for the Company Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below). (ii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries. (iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property. (iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries. (v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business. (vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries. (vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries. (viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties. (ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Entegra Financial Corp.), Merger Agreement (First Citizens Bancshares Inc /De/)
Real and Personal Property. (a) None of the Companies own any real property. The Equityholders have delivered to Purchaser a correct and complete copy of the Leases, including amendments, waivers, or other changes thereto, for the Leased Properties. The Leased Properties and the Leases comprise all leased real property interests and leases and agreements related thereto used in the conduct of the business of each Company as each is currently conducted. With respect to each Lease: (i) Set all leased buildings and improvements and all leased fixtures are held under the Lease; (ii) the Lease is in full force and effect and a valid instrument enforceable against the applicable Company that is identified as the tenant thereunder, and to the Equityholders’ Knowledge, the other party thereto, in each case in accordance with its terms; (iii) all rents, required deposits, additional rent and payments due as of the Closing Date pursuant to the Lease have been paid in full; (iv) there is no existing default by any Company, or to the Equityholders’ Knowledge, by the lessor under the Lease; (v) no Company has received any notice that it is in default under the Lease; (vi) no party other than the applicable Company and the identified lessor have any interest in the Leased Properties; and, (vii) except as set forth on Schedule 4.2(t)(i) 5.3, no consent is required to be obtained by any Company pursuant to the Lease in connection with the consummation of the Company Disclosure Memorandum is a true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Properties”)transactions contemplated hereby. Except for the Company PropertiesLeases, as none of the date Companies has entered into any leases or subleases or granted any rights of this Agreementfirst refusal, neither rights of reverter, options to purchase or rights of occupancy with respect to the Leased Properties. No Company nor has received any notice that the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as Leased Properties are not yet due validly zoned for their current use and payable. None of occupancy by such Company under the Owned Real Property is leased by the Company applicable zoning codes and urban renewal plans or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the that a Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or ’s current use of the Leased Real Property.
(iv) There Properties is no Person not in possession compliance therewith. No Company has received notice of any pending or occupation ofthreatened condemnations, planned public improvements, annexations, special assessments, zoning or subdivision changes, or who has any current right to possession or occupation of, other adverse claims affecting the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Leased Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none All of the buildings, structures, or material fixtures and other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-wayimprovements, and none of building systems situated within the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Leased Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good operating condition, normal reasonable wear and tear excepted, and is reasonably sufficient for have been maintained in the carrying on Ordinary Course of Business. Each Company has adequate rights of ingress into and egress out of the business Leased Properties.
(b) Each Company has good and valid title to, or a valid leasehold interest in, the assets used by it or located on the Leased Property free and clear of all Liens except for such Liens as: (i) shall be fully released and cancelled as of the Closing Date; or (ii) are approved in writing by Purchaser prior to the Closing and listed in Schedule 5.26 (such listed Liens being referred to herein as the “Permitted Liens”).
(c) All of the tangible assets of each Company are in good operating condition and the Bank repair, ordinary wear and their Subsidiaries tear excepted, and are usable in the ordinary course consistent with past practiceOrdinary Course of Business.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Installed Building Products, Inc.)
Real and Personal Property. (a) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, the Company and its Subsidiaries (as applicable) have (i) Set forth good title to, or valid leasehold interests in, all of their respective properties and assets (including all Company Owned Real Property and all Company Leased Real Property), free and clear of all Liens, except for Permitted Liens, and (ii) exclusive possession of all Company Owned Real Property and Company Leased Real Property.
(b) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Schedule 4.2(t)(i) the Company, each Company Lease is a valid and binding obligation of the Company Disclosure Memorandum is a true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company or the Bank or any of their Subsidiariesits Subsidiaries that is a party thereto, including without limitation property carried on as applicable, and to the books Knowledge of the Bank as “Company, the other real estate owned” parties thereto; provided that (the “Owned Real Property”i) such enforcement may be subject to applicable bankruptcy, insolvency (including all Laws related to fraudulent transfers), reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights and remedies generally and (ii) the remedies of specific performance and injunctive 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. The Company has provided Parent with true, correct and complete (in all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Properties”). Except for the Company Propertiesmaterial respects) copies, as of the date of this Agreement, neither the of each Material Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below)Lease.
(iic) The Company Except as has not had, and would not reasonably be expected to have, individually or in the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in aggregate, a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of Material Adverse Effect on the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None none of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company its Subsidiaries has received any written communication from, or the Bank given any written communication to, or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, received or given any other type of communication from or to, any other party to any Company Lease or any lender, alleging that the Company, any of its Subsidiaries or such leaseother party, as the case may be, is in breach or default under such Company Lease.
(d) Except as has not had, and would not reasonably be expected to have, individually or in violation ofthe aggregate, in a Material Adverse Effect on the Company, (i) no Person, other than the Company or a Subsidiary of the Company, possesses, uses or occupies all or any material respect, any provision portion of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and (ii) there are no parcel outstanding options or rights of Leased first refusal to purchase any Company Owned Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such leaseinterest therein, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iviii) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There there are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited Proceedings to take all or materially interfered with any portion of any Company Leased Real Property or would reasonably be expected to prohibit any Company Owned Real Property or materially interfere with such access; any interest therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof and (iv) the Company Owned Real Property and, to the Knowledge of the Company, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceableLeased Real Property, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property buildings located thereon owned or leased by the Company or any of its Subsidiaries have no material defects, are in condition and repair (given due account to the Bank age and their Subsidiaries is in reasonably good conditionlength of use of same, normal ordinary wear and tear excepted, ) adequate and is reasonably sufficient suitable for the carrying on of the business of the Company their present and the Bank and their Subsidiaries in the ordinary course consistent with past practiceintended uses.
Appears in 2 contracts
Sources: Merger Agreement (Steelcase Inc), Merger Agreement (Hni Corp)
Real and Personal Property. (i) Set forth on Schedule 4.2(t)(i) of the Company Entegra Disclosure Memorandum is a true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Entegra Properties”). Except for the Company Entegra Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Entegra Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Entegra Parties have previously delivered or made available to BancShares SmartFinancial a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Entegra Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Entegra Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Entegra Properties other than the Company Entegra Parties and their Subsidiaries.
(v) Each of the Company Entegra Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Entegra Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Entegra Parties and their Subsidiaries to be adequate for the current business of the Company Entegra Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Entegra Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Entegra Business Properties encroaches upon or over any portion of the Company Entegra Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Entegra Business Properties that materially affect the Company Entegra Parties’ or their Subsidiaries’ use of or right to use the Company Entegra Business Properties for the conduct of their business.
(vi) None of the Company Entegra Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Entegra Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Entegra Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Entegra Properties as currently used and operated by the Company Entegra Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Entegra Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Entegra Properties are appropriately zoned for each of the purposes for which they are being used by the Company Entegra Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Entegra Properties are adequate in all material respects for the Company Entegra Parties’ and their Subsidiaries’ existing use and operation of the Company Entegra Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Smartfinancial Inc.), Merger Agreement (Entegra Financial Corp.)
Real and Personal Property. (i) Set forth on Schedule 4.2(t)(i) of the Company Disclosure Memorandum is a true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Properties”). Except for the Company Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(va) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company Subsidiaries has no Knowledge that any of the Company Propertiesgood and valid title to, or any such buildingvalid leasehold interests in, structureall its properties and assets, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all LiensEncumbrances, except for Permitted Liens. In each case except asEncumbrances that could not, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect on Effect. Except for the CompanyPermitted Encumbrances, each lease of the Company and the Company Subsidiaries enjoys peaceful and undisturbed possession under all Real Property Leases (as defined below) to which it is a party, except as could not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(b) Neither the Company nor any Company Subsidiary owns any real property.
(c) Section 3.15(c) of the Company Disclosure Schedule sets forth a true and complete list of all real property leased, subleased, licensed or otherwise occupied (whether as tenant, subtenant or pursuant to other occupancy arrangements) by the Company or any Company Subsidiary (collectively, including the improvements thereon, the "Leased Real Property"), and for each Leased Real Property, identifies the street address of such Leased Real Property. True and complete copies of all agreements (and any amendments thereto) under which the Company or any Company Subsidiary is the Banklandlord, sublandlord, tenant, subtenant, or any occupant (each a "Real Property Lease") that have not been terminated or expired as of their Subsidiaries, leases personal property the date hereof have been made available to Parent. Each Real Property Lease is valid, binding, enforceable, a valid and binding obligation of the Company or a Subsidiary and is in full force and effect. The Company or the Company Subsidiary which is a party to a Real Property Lease has not received any written notice of any default under such Real Property lease which remains uncured and there is no default under any Real Property Lease either by the Company or the Company Subsidiaries party thereto or, to the Company's knowledge, by any other party thereto, and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a default by the Company or any Company Subsidiary thereunder, except for such defaults as could not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(d) Except for Permitted Encumbrances, neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other Subsidiary is a party to any such lease, is in default under sublease, license or in breach other agreement granting to any third party a right to the use, occupancy or violation enjoyment of any provision of Owned Real Property or Leased Real Property or any such lease. The personal property owned portion thereof.
(e) There are no disputes, oral agreements or leased by the Company and the Bank and their Subsidiaries is forbearance programs in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent effect with past practicerespect to any Real Property Lease.
Appears in 2 contracts
Sources: Merger Agreement (Turbochef Technologies Inc), Merger Agreement (Middleby Corp)
Real and Personal Property. (ia) Set forth on Schedule 4.2(t)(iThe Company has good and marketable title to, or valid leasehold interests in, all of its properties and assets, free and clear of all Encumbrances, except for Encumbrances that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The Company enjoys peaceful and undisturbed possession under all Real Property Leases (as defined below) to which it is a party, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(b) The Company does not own any real property.
(c) Section 3.15(c) of the Company Disclosure Memorandum is Schedule sets forth a true, correct, true and complete list of all real property leased, subleased, licensed or otherwise occupied (whether as tenant, subtenant or pursuant to other occupancy arrangements) by the Company (collectively, including the improvements thereon, the “Leased Real Property”), and for each Leased Real Property, identifies the street address) address of such Leased Real Property. True and complete copies of all agreements under which the Company is the landlord, sublandlord, tenant, subtenant, or occupant as of the date of this Agreement (each a “Real Property Lease”) that have not been terminated or expired have been made available to Parent. Each Real Property Lease is a valid and binding obligation of all real property owned by the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Properties”). Except for the Company Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has default under any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use Real Property Lease either by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company’s knowledge, threatened governmental action that by any other party thereto, and no event has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists whichoccurred that, with the passage lapse of time or the giving of notice, notice or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at constitute a default by the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liensthereunder, except for Permitted Liens. In each case except assuch defaults as would not, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect on the Company, each lease pursuant to which the Effect.
(d) The Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other not a party to any such lease, is in default under sublease, license or in breach other agreement granting to any third party a right to the use, occupancy or violation enjoyment of any provision of Leased Real Property or any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practiceportion thereof.
Appears in 2 contracts
Sources: Merger Agreement (Kinetic Concepts Inc /Tx/), Merger Agreement (Lifecell Corp)
Real and Personal Property. (ia) Set Schedule 5.10(a)(i) sets forth on Schedule 4.2(t)(i) of the Company Disclosure Memorandum is a true, correct, true and complete list (by street address) as of the date of this Agreement of all real property owned by the Company and its Subsidiaries (such properties, together with all improvements and fixtures located thereon or attached or appurtenant thereto, and all easements, licenses, rights and appurtenances relating to the Bank or any of their Subsidiariesforegoing, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”). The Company or one of its Subsidiaries has good and marketable fee simple title to all Owned Real Property free and clear of all Liens, other than Permitted Exceptions. Such real property includes all real property, easements, rights of way, and all other real property leased interests appurtenant to the real property (when taken together with the Leases) necessary to conduct the business and operations of the Company as presently conducted. Schedule 5.10(a)(ii) contains a complete and correct list of all Owned Real Property which any Person other than the Company or its Subsidiaries has any right (whether by lease, license or otherwise) to use or occupy.
(b) Schedule 5.10(b) sets forth a list of all leases, subleases, licenses and similar occupancy agreements for real property leased, licensed or otherwise occupied by the Company or the Bank its Subsidiaries as tenant or any of their Subsidiaries lessee (including as subtenant or sublessee or licensee or comparable party) (the “Leased Real Property,” ”, and together with the Owned Real Propertysuch leases, collectivelysubleases, licenses and similar occupancy agreements, in each case including all amendments, the “Company PropertiesLeases”). Except for the Company Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transferset forth on Schedule 5.10(b), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there Leases are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, subject to the Bankruptcy and neither Equity Exception. Neither the Company nor the Bank nor any of their Subsidiariesits Subsidiaries nor, nor to the Knowledge of the Company, any landlord or other party to any such lease, counterparty thereto is in breach or default under or in violation of, in any material respect, respect under any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, Lease and no parcel event has occurred or condition exists that, with or without notice or lapse of Leased Real Property is subject to any legally binding leasetime or both, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use constitute a material default by the Company or the Bank or any of their its Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that by any landlord or other counterparty thereto. The Company has prohibited delivered or materially interfered with or would reasonably be expected made available to prohibit or materially interfere with such access; and, Parent prior to the Knowledge date hereof complete and accurate copies of each of the Company, no fact Leases. The Company or condition exists which, with the passage one of time its Subsidiaries has a valid leasehold or the giving of notice, subleasehold or both, would reasonably be expected license or comparable interest relating to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation each parcel of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by themLeased Real Property, in each case free and clear of any and all Liens, except for Permitted LiensExceptions. In each case Schedule 5.10(b) contains a complete and correct list of all Leased Real Property which any Person other than the Company or its Subsidiaries has any right (whether by sublease, license or otherwise) to use or occupy.
(c) With respect to the tangible properties and assets of the Company and its Subsidiaries (excluding real property and Intellectual Property), except asas would not be reasonably likely to be, individually or in the aggregate, has not had and would not reasonably be expected materially adverse to have a Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and its Subsidiaries, taken as a whole, the Bank Company and their its Subsidiaries is in reasonably have good conditionand marketable title to, normal wear or hold pursuant to valid and tear exceptedenforceable leases free and clear of any Liens other than Permitted Exceptions, all such properties and is reasonably sufficient for assets necessary to the carrying on conduct of the business businesses of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practiceits Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Interline Brands, Inc./De)
Real and Personal Property. (ia) Set forth on Schedule 4.2(t)(iSection 3.11(a) of the Company Disclosure Memorandum is Letter sets forth a true, correct, complete and complete correct list of all real property owned in fee simple by the Company or any Subsidiary of the Company (by street addressthe “Owned Real Property”) as of the date of this Agreement of all real property owned by and the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books name of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together fee owner with the Owned Real Property, collectively, the “Company Properties”)respect thereto. Except for the Company Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have have, a Company Material Adverse Effect on Effect, (i) either the Company or a Subsidiary of the Company has good and marketable title to the Company Owned Real Property, free and clear of all Liens other than any Permitted Liens, (ii) the Company or any Subsidiary of the Company has sufficient rights of ingress and egress to the Owned Real Property and (iii) there are no outstanding options or rights of first offer or refusal to purchase the Owned Real Property or any portion thereof in favor of any Person.
(b) Section 3.11(b) of the Company Disclosure Letter sets forth a true, correct and complete list of all real property leased, subleased, licensed or similarly occupied by the Company or any Subsidiary of the Company with a base annual rent in excess of $1,000,000 as of the date of this Agreement (the “Leased Real Property”) and the leases, subleases, licenses and occupancy agreements, together with all assignments thereof and amendments, supplements and modifications with respect thereto (each, a “Lease”). The Company has made available to Parent true, correct and complete copies of the Leases. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, with respect to each Leased Real Property and the accompanying Lease, (i) the Company or its applicable Subsidiary that is party thereto has good and valid leasehold interests in such Leased Real Property, free and clear of all Liens, other than Permitted Liens, (ii) the Lease is valid, binding and enforceable by the Company or its applicable Subsidiary that is party thereto and, to the knowledge of the Company, each lease pursuant other party thereto (in each case subject to which the Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceableBankruptcy and Equity Exception), and is in full force and effect, and neither (iii) there is no default under the Lease by the Company nor or its applicable Subsidiary that is party thereto or, to the Bankknowledge of the Company, nor any other party thereto, and no event has occurred that with the lapse of their Subsidiariestime or the giving of notice or both would constitute a default thereunder by the Company or its applicable Subsidiary that is party thereto or, to the knowledge of the Company, any other party thereto, and (iv) there are no disputes pending or, to the Company’s knowledge, threatened with respect to the Lease, and the Company or its applicable Subsidiary that is party thereto has not received any notice of the intention of any other party to the Lease to amend, terminate, not renew or reduce any commitment under the Lease, nor to the Knowledge Company’s knowledge is any such party threatening to do so and (v) the Company or its applicable Subsidiary that is party thereto has not collaterally assigned or granted any other security interest in any such leasehold estate or any interest therein.
(c) Neither the Company nor any Subsidiary of the Company has leased, subleased, licensed or otherwise granted any Person a material right to use or occupy the Owned Real Property or Leased Real Property, or any portion thereof.
(d) To the knowledge of the Company, there is no existing material condemnation or other party proceeding in eminent domain, or any proceeding pending or threatened in writing, affecting any portion of the Owned Real Property or Leased Real Property.
(e) Except as has not had and would not reasonably be expected to any such leasehave, individually or in the aggregate, a Company Material Adverse Effect, each of the Owned Real Property and Leased Real Property is in default under or good repair, free of defects and is otherwise adequate and sufficient to permit the continued use of such property in breach or violation of any provision of any such lease. the manner and for the purposes to which it is presently devoted.
(f) The personal property owned or leased by the Company and the Bank Subsidiaries of the Company have good and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably valid title to all of its tangible assets sufficient for the carrying on conduct of the its business of the Company as presently conducted, except for defects in title, easements, restrictive covenants and the Bank similar encumbrances that have not had and their Subsidiaries would not reasonably be expected to have, individually or in the ordinary course consistent with past practiceaggregate, a Company Material Adverse Effect. All such assets are free and clear of all Liens, except for Permitted Liens.
Appears in 2 contracts
Sources: Merger Agreement (PPD, Inc.), Merger Agreement (Thermo Fisher Scientific Inc.)
Real and Personal Property. (ia) Set Except as set forth on Schedule 4.2(t)(iin Section 3.15(a) of the Company Disclosure Memorandum Schedule and except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, each of the Company and the Company Subsidiaries has good and marketable title to, or valid leasehold interests in, all of its properties and assets, free and clear of all Encumbrances other than Permitted Encumbrances. Each of the Company and the Company Subsidiaries enjoys peaceful and undisturbed possession under all Real Property Leases (as defined below) to which it is a trueparty, correctexcept as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(b) Section 3.15(b) of the Company Disclosure Schedule sets forth a true and complete list (by street address) as of the date of this Agreement of all real property owned by the Company or the Bank or any of their SubsidiariesCompany Subsidiary (collectively, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”). Neither the Company nor any Company Subsidiary is obligated under, or a party to, any option, right of first refusal or other contractual right to sell, assign or dispose of any Owned Real Property or any portion thereof.
(c) Section 3.15(c) of the Company Disclosure Schedule sets forth a true and complete list of all real property leased leased, subleased, licensed or otherwise occupied (whether as tenant, subtenant or pursuant to other occupancy arrangements) by the Company or any Company Subsidiary (collectively, including the improvements thereon, the “Leased Real Property”). Each material agreement under which the Company or any Subsidiary is the landlord, sublandlord, tenant, subtenant, or occupant (each a “Real Property Lease”) that has not been terminated or expired as of the date hereof is a valid and binding obligation of the Company or a Company Subsidiary and is in full force and effect. There is no default under any Real Property Lease either by the Company or the Bank or any of their Company Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Properties”). Except for the Company Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending thereto or, to the Knowledge of Company’s knowledge, by any other party thereto, and to the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company’s knowledge, no fact or condition exists whichevent has occurred that, with the passage lapse of time or the giving of notice, notice or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at constitute a default by the Company Properties are adequate in all material respects for the or any Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all LiensSubsidiary thereunder, except for Permitted Liens. In each case except assuch defaults as would not, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practiceEffect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Oshkosh Truck Corp), Merger Agreement (JLG Industries Inc)
Real and Personal Property. (a) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, the Company and its Subsidiaries (as applicable) have (i) Set forth on Schedule 4.2(t)(igood title to, or valid leasehold interests in, all of their respective properties and assets (including all Company Owned Real Property and all Company Leased Real Property), free and clear of all Liens, except for Permitted Liens, and (ii) exclusive possession of all Company Owned Real Property and Company Leased Real Property. Other than as constitutes a Permitted Lien, neither the Company Disclosure Memorandum nor any of its Subsidiaries is a truelessor or grantor under any material lease or other instrument granting to any other Person any right to the possession, correctlease, and complete list (by street address) as occupancy or enjoyment of the date of this Agreement of all any material real property owned by the Company or any of its Subsidiaries or any material portion thereof (including any Company Owned Real Property).
(b) Each Company Lease is a valid and binding obligation of the Bank Company or any of their Subsidiariesits Subsidiaries that is a party thereto, including without limitation property carried 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 have, individually or in the aggregate, a Material Adverse Effect on the books Company; provided that (i) such enforcement may be subject to applicable bankruptcy, insolvency (including all Laws related to fraudulent transfers), reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights and remedies generally and (ii) the remedies of specific performance and injunctive relief and other forms of equitable relief may be subject to equitable defenses and to the discretion of the Bank as “other real estate owned” (the “Owned Real Property”)court before which any Proceeding therefor may be brought. The Company has provided Parent with true, correct and all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Properties”). Except for the Company Propertiescomplete copies, as of the date hereof, of each material Company Lease.
(c) As of the date of this Agreement, neither except as has not had, and would not reasonably be expected to have, individually or in the Company nor the Bank nor any of their Subsidiaries holds any interest (feeaggregate, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of Material Adverse Effect on the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None none of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company its Subsidiaries has received any written communication from, or the Bank given any written communication to, or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, received or given any other type of communication from or to, any other party to any Company Lease or any lender, alleging that the Company, any of its Subsidiaries or such leaseother party, as the case may be, is in breach or default under such Company Lease.
(d) Except as has not had, and would not reasonably be expected to have, individually or in violation ofthe aggregate, in a Material Adverse Effect on the Company (i) no Person, other than the Company or a Subsidiary of the Company, possesses, uses or occupies all or any material respect, any provision portion of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and (ii) there are no parcel outstanding options or rights of Leased first refusal to purchase any Company Owned Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use interest therein and (iii) as of the Leased Real Property.
(iv) There is no Person in possession or occupation ofdate hereof, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There there are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited Proceedings to take all or materially interfered with any portion of any Company Leased Real Property or would reasonably be expected to prohibit any Company Owned Real Property or materially interfere with such access; and, to the Knowledge of the Company, no fact any interest therein by eminent domain or condition exists which, with the passage of time any condemnation proceeding (or the giving of notice, jurisdictional equivalent thereof) or both, would reasonably be expected to result any sale or disposition in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Propertieslieu thereof.
(ixe) The Company and the Bank and their its Subsidiaries have good and marketable title to all personal (as applicable) do not own any material real property owned by them, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which other than the Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practiceOwned Real Property.
Appears in 2 contracts
Sources: Merger Agreement (AZEK Co Inc.), Merger Agreement (James Hardie Industries PLC)
Real and Personal Property. (ia) Set forth on Schedule 4.2(t)(i) None of the Company Disclosure Memorandum is Group Companies owns any real property.
(b) Schedule 3.16(b) sets forth a true, correct, correct and complete list of each Real Property Lease pursuant to which the aggregate annual rental payments equal or exceed $25,000 (by street address) as of the date of this Agreement of all real property owned by the Company or the Bank or any of their Subsidiarieseach, including without limitation property carried on the books of the Bank as a “other real estate owned” (the “Owned Material Real PropertyProperty Lease”), and all real property leased by lists the Company or address of each Leased Real Property that is subject to a Material Real Property Lease, the Bank or any current use of their Subsidiaries (the “such Leased Real Property,” , and together with the Owned Real Property, collectively, the “Company Properties”). Except for the Company Properties, as base rental rate and expiration date of the date current term of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below)such Material Real Property Lease.
(iii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Each Material Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer)Lease is legal, in each case free valid and clear of any and all Liensbinding on the Group Company party thereto, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor enforceable in accordance with its terms (subject to the Knowledge of Remedies Exception), (ii) the CompanyGroup Company party thereto has a legal, any other party to any such leasevalid, is enforceable and existing leasehold interest in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the all Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding leaseno Lien except for Permitted Liens, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use (iii) none of the Leased Real Property.
(iv) There is no Person in possession or occupation ofGroup Companies, or who has any current right and, to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each knowledge of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the CompanyGroup Companies, none of the buildingsother parties thereto, structures, are in default under any Material Real Property Lease nor is there any event or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists circumstance which, with the passage of time or the giving of notice, notice (or both), would reasonably constitute a default under any Material Real Property Lease, (iv) except as set forth on Schedule 3.16(b), no Group Company has leased, subleased, assigned, licensed or otherwise granted to any Person the right to use or occupy any portion of the Leased Real Property and no Person, other than the Group Companies, uses or occupies (or has a right to use or occupy) the Leased Real Property or any portion thereof, (v) all brokerage commissions and other compensation and fees payable by reason of the Material Real Property Leases have been paid in full, (vi) no Group Company has waived any material rights under any Material Real Property Lease which would, without such waiver, be expected to result exercisable by such Group Company after the date hereof, (vii) except as set forth on Schedule 3.16(b), no renewal or extension right or option in any Material Real Property Lease has been exercised beyond the termination of or material reduction or impairment current term of such accessMaterial Real Property Lease. All existing utilities provided at the Company Properties are adequate The Leased Real Property constitutes, in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation respects, all of the Company Propertiesreal property necessary to conduct the business of the Group Companies as currently conducted. Seller has made available to Purchaser prior to the date hereof a true and correct copy of all Material Real Property Leases, and none of such Material Real Property Leases has been modified or any options exercised thereunder, except to the extent that such modifications or exercises of such options have been disclosed to Purchaser in writing prior to the date hereof.
(ixc) All improvements, building systems and fixtures applicable to the Leased Real Property are structurally sound, in good condition and repair, subject to ordinary wear and tear, and have not suffered any material casualty or other material damage that has not been repaired in all material respects. There is no pending or, to the knowledge of the Group Companies, threatened condemnation, eminent domain or similar proceeding affecting all or any part of the Leased Real Property and no Group Company has received any written notice thereof. The current use and occupancy of the Leased Real Property is in material compliance with all applicable building, zoning, land use and similar Laws, ordinances, regulations and Orders of Governmental Entities and no Group Company has received written notice of material violation thereof.
(d) Except for properties and assets sold or otherwise disposed of in the Bank and their Subsidiaries Ordinary Course of Business of the Group Companies since the date of the Latest Balance Sheet, the Group Companies collectively have good and marketable valid title to to, or hold under legal, valid, existing and enforceable leases, all material machinery, equipment and other tangible personal property owned by themreflected on the Latest Balance Sheet or otherwise used in the Ordinary Course of Business of the Group Companies, in each case free and clear of any and all Liens, subject to no Lien except for Permitted Liens. In each case except asThe assets and properties held, individually owned or leased by the Group Companies are adequate, suitable and sufficient for the continued conduct of this businesses after the Closing in substantially the aggregatesame manner as conducted by the Group Companies during the past twelve (12) months and as currently proposed to be conducted. All improvements, systems, equipment, machinery and fixtures on the Leased Real Property, and all other items of tangible personal property held, owned or leased by the Group Companies, (i) are in good condition and repair, subject to ordinary wear and tear, (ii) are adequate for the uses to which they are being put, (iii) have not suffered any material casualty or other material damage that has not had been repaired, and would (iv) are not reasonably be expected to have in need of any material maintenance or repairs.
(e) Schedule 3.16(e) sets forth a Material Adverse Effect on the Companytrue, each lease correct and complete list of all Real Property Leases pursuant to which a Group Company has entered into a rent deferral or similar rent relief arrangement with the Company or the Banklandlord thereunder (each, or any of their Subsidiaries, leases personal property is valid, binding, enforceablean “Existing Relief Arrangement”), and the Target Companies have delivered to Purchaser true, correct and complete copies of all documents evidencing any Existing Relief Arrangement, and to the extent copies of such documents are not available, the Target Companies have delivered a reasonable description of any such Existing Relief Arrangement. Each Existing Relief Arrangement is a legal, valid and binding obligation on the landlord thereunder, in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any enforceable in accordance with its terms against such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practicelandlord.
Appears in 1 contract
Real and Personal Property. (ia) Set Schedule 2.12(a) sets forth on Schedule 4.2(t)(i) of a general description and the Company Disclosure Memorandum is a true, correct, and complete list (by street address) as of the date of this Agreement property address of all real property owned by the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” its Subsidiaries (the “"Owned Real Property”"), and .
(b) Schedule 2.12(b) sets forth a list of all the real property that is leased by the Company or the Bank or any of their its Subsidiaries (collectively, the “"Leased Real Property,” " and together collectively with the Owned Real Property, collectively, the “Company Properties”"Real Property"). Except for the Company Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company has made available to the Buyer true and the Bank and their Subsidiaries have good and marketable title to correct copies of all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transferleases listed on Schedule 2.12(b), in each case free and clear of any and including all Liensmaterial amendments to such leases, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to under which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive Subsidiary has possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted"Leases"), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries . With respect to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all LiensLease, except for Permitted Liens. In each case except asas would not, individually or in the aggregate, have a Material Adverse Effect:
(i) the Company or a Subsidiary, as applicable, have good, valid and enforceable leasehold interests to the leasehold estate in the Leased Real Property granted to the Company or such Subsidiary, as applicable, pursuant to each pertinent Lease, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors' rights and general principles of equity;
(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) to the knowledge of the Company, neither the Company nor such Subsidiary, nor any landlord or other party to any of said Leases, is in default under any of said Leases, nor, to the knowledge of the Company, 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, or any landlord or other party to any of said Leases, as applicable, except as would not, individually or in the aggregate, be material to the Company or a Subsidiary.
(c) To the knowledge of the Company, except as set forth on Schedule 2.12(c) or as specifically disclosed in the Base Balance Sheet, and except with respect to leased personal property, the Company and each of its Subsidiaries has good title to all of their respective tangible personal property and assets shown on the Base Balance Sheet or acquired after the date of the Base Balance Sheet, free and clear of any Encumbrances, except for (i) assets which have been disposed of to nonaffiliated third parties since the date of the Base Balance Sheet in the ordinary course of business, (ii) Encumbrances reflected in the Base Balance Sheet, (iii) Encumbrances of record or imperfections of title which are not, individually or in the aggregate, 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 otherwise, individually or in the aggregate, have a Material Adverse Effect on the Companyand (iv) Encumbrances for current Taxes not yet due and payable, each lease pursuant to which the Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor but only to the Knowledge extent such Taxes are reflected as a Current Liability in the computation of the Company any other party to any such leaseFinal Working Capital.
(d) Except as set forth in Schedule 2.12(d), is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and its Subsidiaries have good title to the Bank Owned Real Property and to all of their Subsidiaries is non-leased fixtures, machinery, equipment, furniture and other tangible assets located on the Real Property ("Tangible Property") free and clear of any Encumbrances other than Permitted Liens. "Permitted Liens" means (i) any matters which an accurate survey of the Owned Real Property may show which would not, individually or in reasonably good conditionthe aggregate, normal wear have a Material Adverse Effect; (ii) any landlord lien on the Tangible Property to the extent applicable; (iii) property taxes and tear exceptedassessments not yet due and payable, and is reasonably sufficient but only to the extent such Taxes are reflected as a Current Liability in the computation of the Final Working Capital; (iv) any matters set forth in any instrument recorded or filed in the "Registry of Deeds" (or in respect of a foreign subsidiary the nearest equivalent Governmental Authority) for the carrying on of county in which the business of applicable Real Property is located which would not, individually or in the Company aggregate, have a Material Adverse Effect; and the Bank and their Subsidiaries (v) such other encumbrances which were created, incurred or arise in the ordinary course consistent with past practiceof business.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Esco Technologies Inc)
Real and Personal Property. (ia) Set forth on Schedule 4.2(t)(i) of the The Company Disclosure Memorandum is a truedoes not own and, correcthas not owned, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Properties”). Except for the Company Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries have good and marketable title . With respect to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer)leases, in each case free subleases and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to other Contracts under which the Company or the Bank any Company Subsidiary uses or their Subsidiaries lease the Leased occupies any real property (“Real Property Leases”), (i) each Real Property Lease is valid, binding, enforceable, binding and in full force and effect, effect and neither the Company nor the Bank nor any of their SubsidiariesCompany Subsidiary nor, nor to the Knowledge of the Company, any other party to any such lease, thereto is in breach or default (with or without notice, lapse of time or both) under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correctReal Property Lease, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of (ii) no termination event or condition or uncured default on the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations part of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending Subsidiary or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition landlord thereunder exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such accessunder any Real Property Lease. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have each Company Subsidiary has a good and marketable title to all personal property owned by them, valid leasehold interest in each case parcel of real property leased by it, free and clear of any and all Liens, Liens except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither Neither the Company nor the Bankany Company Subsidiary has received notice of any pending, nor any of their Subsidiaries, nor and to the Knowledge of the Company any other party there is no threatened, condemnation with respect to any such leasematerial real property leased pursuant to any of the Real Property Leases.
(b) The Company and the Company Subsidiaries have (a) good and marketable title to, is in default under or in breach (b) a valid and subsisting leasehold interest in, or violation of any provision of any such lease. The the right to use, all personal property owned or leased and assets used by them in connection with the conduct of their business as presently conducted by the Company or a Company Subsidiary, as the case may be, free and the Bank and their Subsidiaries is in reasonably good conditionclear of all Liens, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practiceother than Permitted Liens.
Appears in 1 contract
Real and Personal Property. (ia) Set forth on Schedule 4.2(t)(iSection 3.16(a) of the Company Disclosure Memorandum is Schedule contains a true, correct, complete and complete accurate list (by street address) as of all of the date of this Agreement of all real property owned by the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” its Subsidiaries (the “Owned Real Property”). Except for the Owned Real Property, neither the Company nor any of its Subsidiaries owns any real property, nor is party to any agreement to purchase or sell any real property. The Company has good and marketable title in fee simple (or the equivalent thereof) to each parcel of the Owned Real Property free and clear of all real property leased by Liens, except for Permitted Liens.
(b) Section 3.16(b) of the Company Disclosure Schedule contains a complete and accurate list of all of the existing leases, subleases, licenses, or other similar agreements (collectively, the “Leases”) under which the Company or the Bank or any of their its Subsidiaries uses or occupies or has the right to use or occupy, now or in the future, any real property (such property, the “Leased Real Property,” and together and, collectively with the Owned Real Property, collectively, the “Company PropertiesReal Property”). Except for ) that would reasonably be expected to result in payments in excess of $2,000,000 in the Company Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) aggregate in any real property, other than interests as a creditor in real property securing Bank Loans one (as defined below).
(ii1) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, any provision of any such leasecalendar year. The Company Parties or its Subsidiaries have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of own valid leasehold estates in the Leased Real Property, free and no parcel clear of Leased Real Property is subject to any legally binding leaseall Liens, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties Permitted Liens. Each Lease is valid and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by binding on the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their its Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear exceptedas applicable), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, the landlord thereunder. To the Knowledge of the Company, no fact event has occurred that with notice or condition exists which, with the passage lapse of time would constitute a default by the tenant under a Lease. Neither the Company nor any of its Subsidiaries has leased or the giving of notice, otherwise granted to any Person rights to use or both, would reasonably be expected to result in the termination of or occupy any material reduction or impairment portion of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company PropertiesLeased Real Property.
(ixc) The There are no condemnation or eminent domain proceedings of any kind pending, or to the Knowledge of the Company, threatened against any parcel of Real Property.
(d) Except as would not constitute a Company Material Adverse Effect, the Company and the Bank and their its Subsidiaries have good valid title to, or valid and marketable title enforceable rights to use under existing franchises, easements or licenses of, or valid and enforceable leasehold interests in, all of their material tangible personal property owned by themproperties and assets necessary to carry on their businesses as currently conducted, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practice.
Appears in 1 contract
Sources: Merger Agreement (Global Brass & Copper Holdings, Inc.)
Real and Personal Property. (i) Set forth on Schedule 4.2(t)(i) of Except as disclosed in the Company Disclosure Memorandum is a true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Properties”). Except for the Company Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).Commission Documents:
(iia) The Company and the Bank and their Subsidiaries does not have good and marketable title to all of the any Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(vb) Each of the Company Properties that Real Property Lease is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations full force and effect and is a valid, legal and binding obligation of the Company or the Bank or any one of their its Subsidiaries (the “Company Business Properties”) is party thereto, enforceable in reasonably good condition (normal wear and tear excepted), conforms in all material respects accordance with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by its terms against the Company or the Bank or any one of their its Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge Company’s Knowledge, each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of the Company, no fact or condition exists which, with the passage creditors’ rights and subject to general principles of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liensequity), except for Permitted Liens. In each case except aswhere the failure to be in full force and effect or a valid, legal and binding obligation would not, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on Effect. Except as disclosed in the CompanyCommission Documents, each lease pursuant to which there is no material breach or default by the Company or any of its Subsidiaries or, to the BankCompany’s Knowledge, any third party under any Real Property Lease, and, to the Company’s knowledge, no event has occurred which (with or without notice or lapse of time or both) would constitute a material breach or default or would permit termination of, or a material modification or acceleration thereof by any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to such Real Property Leases in each case if such event would have a material adverse impact on the ability to use any such lease, is in default under or in breach or violation of any provision of any such lease. The personal real property owned or leased by the Company and or any of its Subsidiaries (collectively, the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient “Leased Real Property”) for the carrying on operation of the business Business as currently conducted.
(c) The Company and its Subsidiaries have good, marketable and indefeasible title to, or a valid leasehold interest in or license or right to use, all of the material assets and properties of the Company and its Subsidiaries used or held for use in the Bank and their Subsidiaries operation of the Company’s Business, except for assets disposed of in the ordinary course consistent with past practiceof business, and such material assets and properties constitute all of the material assets and properties of, or used by, the Company and its Subsidiaries to operate the Business of the Company and its Subsidiaries in the same manner as presently conducted.
Appears in 1 contract
Sources: Ordinary Shares Purchase Agreement (Pagaya Technologies Ltd.)
Real and Personal Property. (i) Set forth on Schedule 4.2(t)(i) of the Company Charter Disclosure Memorandum is a true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company Charter or the Bank or any of their its Subsidiaries, including without limitation property carried on the books of the Bank Charter as “other real estate ownedOther Real Estate Owned” (the “Owned Real Property”), and all real property leased by the Company Charter or the Bank or any of their its Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Charter Properties”). Except for the Company Charter Properties, as of the date of this Agreement, neither the Company nor the Bank Charter nor any of their its Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company . Charter and the Bank and their its Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted LiensLiens for current Taxes and assessments not yet due and payable for which adequate reserves have been established. To the Knowledge of the Company, there There are no material unpaid bills or claims for work performed on or at the Company Properties, except Charter Properties other than bills for such as work that has been performed but which are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company Charter or the Bank or their its Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank Charter nor any of their its Subsidiaries, nor to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, of any provision of any such lease. The Company Parties have Charter has previously delivered or made available to BancShares the Citizens Parties a true, correct, and complete copy of each such lease, including any all amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Charter Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries Charter to be adequate for the current business of the Company Parties Charter and their its Subsidiaries. To the Knowledge of the CompanyCharter, none of the buildings, structures, or other improvements located on any of the Company Business Charter Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, way and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Charter Properties encroaches upon or over any portion of the Company Business Charter Properties.
(ii) Charter and its Subsidiaries are entitled to and have exclusive possession of the Leased Real Property. The Charter Properties are not subject to any other legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes with Charter’s or its Subsidiaries’ use of the Charter Properties. There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Charter Properties other than Charter and its Subsidiaries. There are no easements of any kind on, in respect of, or affecting the Company Business Charter Properties that materially and adversely affect the Company Parties’ or their Subsidiaries’ use rights of or right Charter and its Subsidiaries to use the Company Business Charter Properties for the conduct of their business.
(viiii) None of the Company Charter Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company Charter has no Knowledge that any of the Company Charter Properties, or any such building, structure, fixture, or improvement, will or may be the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Charter Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Charter Properties as currently used and operated by the Company Parties Charter and their its Subsidiaries.
(viiiv) To the Knowledge of the CompanyExcept as set forth on Schedule 4.2(t)(iv), none of the Company Charter Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Charter Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties Charter and their its Subsidiaries.
(viiiv) Neither the Company nor the Bank, Charter nor any of their its Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company Charter or the Bank or any of their its Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the CompanyCharter, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to could prohibit or materially interfere with such access; and, to the Knowledge of the CompanyCharter, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to may result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Charter Properties are adequate in all material respects for the Company Parties’ Charter’s and their its Subsidiaries’ existing use and operation of the Company Charter Properties.
(ixvi) The Company Charter and the Bank and their its Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each Each lease pursuant to which the Company or the Bank, Charter or any of their Subsidiaries, its Subsidiaries leases personal property is valid, binding, enforceableenforceable (subject to the Enforceability Exceptions), and in full force and effect, and neither the Company nor the Bank, Charter nor any of their its Subsidiaries, nor to the Knowledge of the Company Charter any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company Charter and the Bank and their its Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practice.
Appears in 1 contract
Real and Personal Property. (a) Neither the Company nor any of the Subsidiaries owns any real property. To the knowledge of the Company, neither the Company nor any of the Subsidiaries ever owned any real property.
(b) Schedule 2.11(b) sets forth: (i) Set forth on Schedule 4.2(t)(i) the address of the Company Disclosure Memorandum is a true, correct, and complete list (by street address) as each parcel of the date of this Agreement of all real property owned by the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property currently leased by the Company or the Bank or any of their the Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Properties”). Except for the Company Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company as well as a true and the Bank and their Subsidiaries have good and marketable title complete list of all leases relating to all of the Owned Leased Real Property (including any property acquired in each, a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer“Lease”), in each case free including the date and clear of any and all Liens, except Permitted Liens. To the Knowledge name of the Company, there are no material unpaid bills or claims for work performed on or at the parties to such Lease. The Company Properties, except for such as are not yet due has delivered to Buyer a true and payablecomplete copy of each Lease. None of the Owned Real Property is leased by With respect to each Lease:
(i) the Company or a Subsidiary, as applicable, has a legal, valid, binding and enforceable leasehold interest to the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease leasehold estate in the Leased Real Property granted to the Company or such Subsidiary, as applicable, pursuant to such Lease that is valid, binding, enforceable, and in full force and effect, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors’ rights and general principles of equity as they may relate to third parties other than the Company or a Subsidiary;
(ii) neither the Company nor any of the Bank Subsidiaries has assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in such Lease;
(iii) the transactions contemplated by this Agreement: (a) do not require the consent of any other party to such Lease, (b) will not result in a material breach of or material default under such Lease and (c) will not otherwise cause such Lease to cease to be legal, valid, binding, enforceable and in full force and effect on substantially identical terms immediately following the Closing, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors’ rights and general principles of equity as they may relate to third parties other than the Company or a Subsidiary;
(iv) since January 1, 2008, neither the Company’s nor any of their the Subsidiaries’ possession and quiet enjoyment of the Leased Real Property under such Lease has been disturbed and there are no current or unresolved material disputes with respect to such Lease;
(v) neither the Company nor any of the Subsidiaries, nor to the Knowledge knowledge of the Company, any other party to any such lease, the Lease is in material breach of or material default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correctLease, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge knowledge of the Company, no fact event has occurred or condition circumstance exists whichthat, with the delivery of notice, the passage of time or the giving of notice, or both, would reasonably be expected constitute such a material breach or default, or permit the termination, modification or acceleration of rent under such Lease;
(vi) since January 1, 2008, no security deposit or portion thereof deposited with respect to result such Lease has been applied in respect of a breach of or default under such Lease that has not been redeposited in full;
(vii) neither the Company nor any of the Subsidiaries owes, or will owe in the termination future, any brokerage commissions or finder’s fees with respect to such Lease;
(viii) the other party to such Lease is not an Affiliate of, and otherwise does not have any economic interest (other than any share ownership in Member that is equal to or less than 2% of or material reduction or impairment of such access. All existing utilities provided at the Member’s outstanding share capitalization) in, the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation or any of the Company Properties.Subsidiaries;
(ix) The neither the Company and nor any of the Bank and their Subsidiaries have good and marketable title has subleased, licensed or otherwise granted any Person the right to all personal property owned use or occupy the Leased Real Property or any portion thereof; and
(x) there are no Encumbrances on the estate or interest created by them, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except assuch Lease that, individually or in the aggregate, has not had and would not are material in character, amount or extent or which could reasonably be expected to have a Material Adverse Effect on materially detract from the Company, each lease pursuant to which value or materially interfere with the Company or operation of the Bank, or any Business as currently conducted.
(c) The Leased Real Property comprises all of their Subsidiaries, leases personal the real property is valid, binding, enforceable, and used in full force and effect, the Business; and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other Subsidiaries is a party to any such leaseagreement or option to purchase any real property or interest therein.
(d) Except as set forth on Schedule 2.11(d) or as specifically disclosed in the Base Balance Sheet, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on each of the business Subsidiaries has good title to, or valid leasehold interest in or valid rights to use, all of their tangible personal property and assets used by them or shown on the Base Balance Sheet or acquired after the date of the Base Balance Sheet (collectively, the “Company Assets”), free and clear of any mortgage, pledge, lien, conditional sale agreement, security title, encumbrance or other charge (collectively, “Encumbrances”), except for (i) assets that have been disposed of since the Bank and their Subsidiaries date of the Base Balance Sheet in the ordinary course consistent of business, (ii) Taxes, fees, assessments or other governmental charges which are not due and payable as of the Closing Date and (iii) Encumbrances of record or imperfections affecting title which are not, individually or in the aggregate, material in character, amount or extent and which do not materially detract from the value or materially interfere with past practicethe present or presently contemplated use or occupancy of the properties or assets subject thereto or affected thereby. The current use and improvements on the Leased Real Property are not: (a) nonconforming, (b) a special use or (c) a special exception. To the knowledge of the Company, there is no contemplated change in the zoning classification for the Leased Real Property. The Company and the Subsidiaries are not party to or subject to any indenture, agreement, contract, commitment, lease, plan, license, permit, authorization or other instrument, document or understanding, oral or written, or subject to any charter or other corporate restriction or any judgment, order, writ, injunction, decree or award which materially adversely affects or materially restricts their business, operations, assets, properties or condition (financial or otherwise).
Appears in 1 contract
Sources: Securities Purchase Agreement (Zebra Technologies Corp)
Real and Personal Property. (ia) Set No Group Company owns any real property. (b) Schedule 3.07(b) sets forth on Schedule 4.2(t)(i) of all leases, licenses, subleases and occupancy agreements, together with any amendments, modifications or supplements thereto (the “Real Property Leases”), with respect to all real property leased, licensed, subleased or otherwise used or occupied by each Group Company Disclosure Memorandum is a true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries hereof (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Properties”). Except for the Company Properties, as The Real Property Leases are a valid and binding obligation of the date of this AgreementGroup Company party thereto and, neither to the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Propertiesother parties thereto, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, subject to proper authorization and neither execution of each lease by the other party and the application of the Bankruptcy and Equity Exceptions. The applicable Group Company nor the Bank nor any holds a valid and existing leasehold 27 [[6907028]] interest under each such Real Property Lease, free and clear of their Subsidiaries, nor all Liens other than Permitted Liens. The Company has made available to the Knowledge Buyer complete and accurate copies of each of the CompanyReal Property Leases, any other party to any and none of such lease, is in breach or default under or in violation of, Real Property Leases have been modified as of the date hereof in any material respect, any provision of any except to the extent that such lease. The Company Parties have previously modifications are disclosed by the copies delivered or made available to BancShares a true, correct, the Buyer. All rent and complete copy of other material sums and charges payable under each such lease, including Real Property Lease by any amendments thereto. The Group Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, current and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license Group Company or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) party thereto is in reasonably good condition (normal wear and tear excepted), conforms default in all any material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on respect under any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; Real Property Leases and, to the Knowledge knowledge of the Company, no fact or condition exists event has occurred which, with the giving of notice or the passage of time or the giving of noticetime, or both, would reasonably be expected to result in give rise to such material default, nor have any of them given or received any notice alleging any of the termination of or material reduction or impairment of such accesssame. All existing utilities provided at the Company Properties are adequate in all material respects Each Leased Real Property is suitable for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens, except purposes for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bank, or any of their Subsidiaries, leases personal property it is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such leasecurrently used. The personal Leased Real Property are the only real property owned or leased by the Company and the Bank and their Subsidiaries is interests in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient real property that are necessary for the carrying on conduct of the business of the Group Companies as conducted as of the date of this Agreement. Other than the applicable Group Company and pursuant to the Bank and their Subsidiaries in applicable Real Property Lease, no Person has the ordinary course consistent with past practiceright to use or occupy any Leased Real Property.
Appears in 1 contract
Sources: Unit Purchase Agreement (White Mountains Insurance Group LTD)
Real and Personal Property. (ia) Set forth on Schedule 4.2(t)(iThe Company does not own any real property.
(b) Section 3.13 of the Company Disclosure Memorandum is Letter sets forth the address of each Leased Real Property, and a true, correct, true and complete list (by street address) as of the date of this Agreement of all real property owned by the Company or the Bank or any of their SubsidiariesLeases (including all amendments, including without limitation property carried on the books of the Bank as “extensions, renewals, guaranties and other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries (the “agreements with respect thereto) for each such Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Properties”). Except for the Company Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired the date and name of the parties to such Lease document). The Company has delivered to Parent a true and complete copy of each such Lease document, and in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each the case free and clear of any oral Lease, a written summary of the material terms of such Lease. With respect to all Leases, (i) each Lease is valid, binding, enforceable and all Liensin full force and effect and neither the Company nor, except Permitted Liens. To to the Knowledge of the Company, there are any other party thereto is in breach or default (with or without notice, lapse of time or both) under any Lease, (ii) no material unpaid bills termination event or claims for work performed condition or uncured default (with or without notice, lapse of time or both) on or at the part of the Company Propertiesor, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, any other party to the Lease, exists under any such leaseLease, is in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, (iii) the Company’s possession and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession quiet enjoyment of the Leased Real PropertyProperty under such Lease has not been disturbed, and to the Company’s knowledge, there are no parcel of disputes with respect to such Lease; (iv) the Company has not subleased, licensed or otherwise granted any Person the right to use or occupy such Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
portion thereof; (v) Each of the Company Properties that is used has not collaterally assigned or held for use by the Company or the Bank granted any other security interest in such Lease or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear interest therein; and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that there are no liens or encumbrances on the estate or interest created by such Lease except for Permitted Liens. The Company has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; andnot received notice of any pending, and to the Knowledge of the CompanyCompany there is no threatened, no fact or condition exists which, condemnation with respect to any real property leased pursuant to any of the passage of time or the giving of notice, or both, would reasonably be expected to result Leases. The Leased Real Property indentified in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation Section 3.13 of the Company PropertiesDisclosure Letter comprises all of the real property used in the business of the Company.
(ixc) The Company and the Bank and their Subsidiaries have has good and marketable title to, or valid and enforceable rights to use under existing material franchises, easements or licenses, or valid and enforceable leasehold interests in, all of its material tangible personal property owned by themproperties and assets necessary to carry on its business as such business is now being conducted, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practice.
Appears in 1 contract
Sources: Merger Agreement (TNS Inc)
Real and Personal Property. (ia) Set forth on Schedule 4.2(t)(iExcept as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company, the Company has good and marketable title to, or valid leasehold interests in, all of its properties and assets, free and clear of all Encumbrances, except for Permitted Encumbrances. The Company enjoys peaceful and undisturbed possession under all occupancy agreements for Leased Real Property, except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b) Section 3.15(b) of the Company Disclosure Memorandum is Schedule sets forth a true, correct, complete and complete correct list (by street address) as of the date of this Agreement of all real property owned leased, subleased, licensed and/or otherwise used or occupied (whether as tenant, subtenant, licensee or pursuant to any other occupancy arrangement (whether written or otherwise)) by the Company or in connection with the Bank or any operation of their Subsidiariesthe Company's business as it is now being conducted (collectively, including without limitation property carried on the books of improvements thereon, the Bank as “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries (the “"Leased Real Property,” and together with ").
(c) Except as set forth in Section 3.15(c)(i) of the Owned Company Disclosure Schedule, no Person, other than the Company, possesses, uses or occupies all or any portion of any Leased Real Property, collectively, the “Company Properties”). Except for Section 3.15(c)(ii) of the Company PropertiesDisclosure Schedule sets forth a true, complete and correct list as of the date of this AgreementAgreement of all subleases, neither the Company nor the Bank nor any of their Subsidiaries holds any interest licenses or other occupancy arrangements (fee, leasehold, whether written or otherwise) in pursuant to which any real propertyPerson, other than interests as the Company, possesses, uses or occupies all or any portion of the Leased Real Property (each, a creditor in real property securing Bank Loans (as defined below"Sublease").
(iid) The Company and the Bank and their Subsidiaries have good and marketable title does not own in fee any real property. With respect to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There there are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge knowledge of the Company, threatened governmental action that has prohibited proceedings to take all or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge any portion of the Company, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bank, Leased Real Property or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and interest therein by eminent domain or any condemnation proceeding or any sale or disposition in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practicelieu thereof.
Appears in 1 contract
Sources: Merger Agreement (Stryker Corp)
Real and Personal Property. (i) Set forth on Schedule 4.2(t)(i) of the Company Capstone Disclosure Memorandum is a true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company Bancshares or the Bank Capstone or any of their Subsidiaries, including without limitation property carried on the books of the Bank Capstone as “other real estate ownedOther Real Estate Owned” (the “Owned Real Property”), and all real property leased by the Company Bancshares or the Bank Capstone or any of their Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Capstone Properties”). Except for the Company Capstone Properties, as of the date of this Agreement, neither the Company Bancshares nor the Bank Capstone nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company . Bancshares and the Bank Capstone and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted LiensExceptions. To the Knowledge of the Company, there There are no material unpaid bills or claims for work performed on or at the Company Properties, except Capstone Properties other than bills for such as work that has been performed but which are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company Bancshares or the Bank Capstone or their Subsidiaries lease the Leased Real Property is valid, binding, enforceableenforceable (except as enforceability may be limited by applicable bankruptcy, insolvency, moratorium, and similar Laws affecting creditors’ rights and remedies generally or general principles of equity, whether applied in a court of law or a court of equity), and in full force and effect, and neither the Company Bancshares nor the Bank Capstone nor any of their Subsidiaries, nor nor, to the Knowledge of the CompanyCapstone Parties, any other party to any such lease, is in breach or default under or in violation of, in any material respect, of any provision of any such lease. The Company Capstone Parties have previously delivered or made available to BancShares the SmartFinancial Parties a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Each of the Capstone Properties that is used or held for use by the Capstone Parties in connection with the current business or operations of the Capstone Parties and their Subsidiaries (the “Capstone Business Properties”) is in good condition (normal wear and tear excepted), conforms with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Capstone Parties to be adequate for the current business of the Capstone Parties and their Subsidiaries. To the Knowledge of the Capstone Parties, none of the buildings, structures, or other improvements located on any of the Capstone Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way and none of the buildings, structures, or other improvements located on any parcel adjoining the Capstone Business Properties encroaches upon or over any portion of the Capstone Business Properties.
(ii) Subject to the terms of the applicable lease, the Capstone Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is . The Capstone Properties are not subject to any other legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Capstone Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) Capstone Properties. There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Capstone Properties other than the Company Capstone Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Capstone Properties that materially and adversely affect the Company Parties’ or rights of the Capstone Parties and their Subsidiaries’ use of or right Subsidiaries to use the Company Business Capstone Properties for the conduct of their business.
(viiii) None To the Knowledge of the Company Capstone Parties, none of the Capstone Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has Capstone Parties have no Knowledge that any of the Company Capstone Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Capstone Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Capstone Properties as currently used and operated by the Company Capstone Parties and their Subsidiaries.
(viiiv) To the Knowledge None of the Company, none of the Company Capstone Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Capstone Properties are appropriately zoned for each of the purposes for which they are being used by the Company Capstone Parties and their Subsidiaries.
(viiiv) Neither the Company Bancshares nor the BankCapstone, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company Bancshares or the Bank Capstone or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the CompanyCapstone Parties, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to could prohibit or materially interfere with such access; and, to the Knowledge of the CompanyCapstone Parties, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to may result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Capstone Properties are adequate in all material respects for the Company Capstone Parties’ and their Subsidiaries’ existing use and operation of the Company Capstone Properties.
(ixvi) The Company Bancshares and the Bank Capstone and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens, except for Liens other than Permitted LiensExceptions. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each Each lease pursuant to which the Company Bancshares or the BankCapstone, or any of their Subsidiaries, leases personal property is valid, binding, enforceableenforceable (except as enforceability may be limited by applicable bankruptcy, insolvency, moratorium, and similar Laws affecting creditors’ rights and remedies generally or general principles of equity, whether applied in a court of law or a court of equity), and in full force and effect, and neither the Company Bancshares nor the BankCapstone, nor any of their Subsidiaries, nor nor, to the Knowledge of the Company Capstone Parties, any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company Bancshares and the Bank Capstone and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company Bancshares and the Bank Capstone and their Subsidiaries in the ordinary course consistent with past practice.
Appears in 1 contract
Real and Personal Property. (a) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company or its Subsidiaries (as applicable) have (i) Set forth on Schedule 4.2(t)(igood and marketable title (or equivalent title in jurisdictions outside of the United States) to all of the Company Disclosure Memorandum Owned Real Property, free and clear of all Liens other than Permitted Liens, and (ii) valid leasehold interests in all of the Company Leased Real Property, free and clear of all Liens other than Permitted Liens.
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each lease, sublease, license or similar occupancy agreement relating to a Company Leased Real Property (as amended, each a “Real Property Lease”) is in full force and effect and is a truevalid and binding obligation of the Company or any of its Subsidiaries that is a party thereto, correctas applicable, and, to the Knowledge of the Company, the other parties thereto (provided that (x) such enforcement may be subject to applicable bankruptcy, insolvency (including all Laws related to fraudulent transfers), reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights and complete list remedies generally and (by street addressy) 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), (ii) neither the Company nor any of its Subsidiaries nor, as of the date of this Agreement of all real property owned by Agreement, to the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books Knowledge of the Bank as “Company, any other real estate owned” party thereto, is in breach of, or default under, any Real Property Lease and (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Properties”). Except for the Company Properties, iii) as of the date of this Agreement, neither the Company nor the Bank nor any of their its Subsidiaries holds has received written notice of any interest (fee, leaseholdactual or potential violation of, or otherwise) in failure to comply with, any real property, other than interests as a creditor in real property securing Bank Loans (as defined below)material term of any Real Property Lease.
(iic) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such Except as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect, each lease pursuant to which (i) the Company Owned Real Property and the Company Leased Real Property are in good operating condition (subject to normal wear and tear) and are suitable and adequate for the purposes for which they are currently being used, in compliance with all regulatory or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceablelegislative requirements applicable to them, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor (ii) to the Knowledge of the Company any other party Company, there are no existing, pending or threatened condemnation proceedings or similar actions relating to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business material part of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practiceOwned Real Property or Company Leased Real Property.
Appears in 1 contract
Sources: Merger Agreement (International Flavors & Fragrances Inc)
Real and Personal Property. (i) Set forth on Schedule 4.2(t)(i) of the Company Community First Disclosure Memorandum is a true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company CFI or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company CFI or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Community First Properties”). Except for the Company Community First Properties, as of the date of this Agreement, neither the Company CFI nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company . CFI and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there There are no material unpaid bills or claims for work performed on or at the Company Properties, except Community First Properties other than bills for such as work that has been performed but which are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company CFI or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceableenforceable (except as enforceability may be limited by the Enforceability Exceptions), and in full force and effect, and neither the Company CFI nor the Bank nor any of their Subsidiaries, nor nor, to the Knowledge of the CompanyCommunity First Parties, any other party to any such lease, is in material breach or default under or in material violation of, in any material respect, of any provision of any such lease. The Company Community First Parties have previously delivered or made available to BancShares the Commerce Union Parties a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Community First Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries Community First Parties in connection with the current business or operations of the Company or the Bank or any of Community First Parties and their Subsidiaries (the “Company CFI Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, ) and is reasonably considered by the Company Community First Parties and their Subsidiaries to be adequate for the current business of the Company Community First Parties and their Subsidiaries. To the Knowledge of the CompanyCommunity First Parties, none of the buildings, structures, or other improvements located on any of the Company CFI Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company CFI Business Properties encroaches upon or over any portion of the Company CFI Business Properties. There .
(ii) To the Knowledge of the Community First Parties, (i) the Community First Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property; (ii) except as set forth on Schedule 4.2(t)(ii) of the Community First Disclosure Memorandum, the Community First Properties are not subject to any other legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes with the Community First Parties’ or their Subsidiaries’ use of the Community First Properties; (iii) there is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Community First Properties other than the Community First Parties and their Subsidiaries; (iv) and there are no easements of any kind on, in respect of, or affecting the Company Business Community First Properties that materially and adversely affect the Company Parties’ or rights of the Community First Parties and their Subsidiaries’ use of or right Subsidiaries to use the Company Business Community First Properties for the conduct of their business.
(viiii) None of the Company Community First Business Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has Community First Parties have no Knowledge that any of the Company Community First Business Properties, or any such building, structure, fixture, or improvement, will or may be the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practice.such
Appears in 1 contract
Real and Personal Property. (ia) Set forth on Schedule 4.2(t)(i) of Neither the Company Disclosure Memorandum is a true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company or the Bank or nor any of their Subsidiaries, including without limitation property carried on the books its Subsidiaries owns any real property.
(b) Schedule 2.11(b) sets forth a list of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their its Subsidiaries (the “"Leased Real Property,” "). Accurate and together complete copies of all leases relating to Leased Real Property identified or required to be identified on Schedule 2.11(b) (the "Leases") have been made available to Buyer or its Representatives. With respect to each Leased Real Property listed or required to be listed on Schedule 2.11(b):
(i) the Company or a Subsidiary of the Company, as applicable, has a valid and enforceable leasehold interest to the leasehold estate in the Leased Real Property granted to the Company or such Subsidiary, as applicable, pursuant to such Lease, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors' rights and general principles of equity;
(ii) such Lease has been duly authorized and executed by the Company or such Subsidiary, as applicable;
(iii) neither the Company nor such Subsidiary is in material default under such Lease, nor, to Seller's knowledge, has any event occurred which, with notice or the Owned Real Propertypassage of time, collectivelyor both, would give rise to such a default by the Company or such Subsidiary, as applicable;
(iv) to Seller's knowledge, the “Company Properties”). Except for landlord identified therein is not in material default under such Lease, nor, to Seller's knowledge, has any event occurred which, with notice or the passage of time, or both, would give rise to such a default by such landlord; and
(v) neither the Company Propertiesnor any of its Subsidiaries has assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in such Lease.
(c) To Seller's knowledge, except as set forth on Schedule 2.11(c) or as specifically disclosed in the Base Balance Sheet, and except with respect to leased personal property, the Company and each of its Subsidiaries has good title to all of their tangible personal property and assets shown on the Base Balance Sheet or acquired after the date of the Base Balance Sheet, free and clear of any Encumbrances, other than (i) Permitted Encumbrances, (ii) assets that have been disposed of since the date of the Base Balance Sheet in the ordinary course of business, and (iii) Encumbrances reflected in the Base Balance Sheet.
(d) Schedule 2.11(d) sets forth an accurate and complete list of each asset owned or leased by the Company and its Subsidiaries with a value in excess of $10,000 on an individual basis as of the date of this Agreement. Each asset identified or required to be identified in Schedule 2.11(d): (i) is structurally sound, neither the Company nor the Bank nor any free of their Subsidiaries holds any interest (fee, leasehold, or otherwise) defects and deficiencies and in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company good condition and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer)repair, in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation ofcase, in any all material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
respects (iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal ordinary wear and tear excepted); (ii) complies in all respects with, conforms and is being operated and otherwise used in compliance in all material respects with with, all applicable ordinances, regulations, Legal Requirements; and zoning (iii) is adequate and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate appropriate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Propertiesuses to which it is being put.
(ixe) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by themExcept as set forth on Schedule 2.11(e), in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which the Company is not a party to any Contracts with, and does not use any of the assets or the Bankproperties of, Seller or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any its Affiliates or Subsidiaries (other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by than the Company and the Bank its Subsidiaries and their Subsidiaries is respective employees in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practicecapacity as such).
Appears in 1 contract
Real and Personal Property. (ia) Set The Company currently does not own and has never owned any real property.
(b) Schedule 3.13(b) sets forth on Schedule 4.2(t)(i) of the Company Disclosure Memorandum is a true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company leases, subleases, licenses or the Bank similar agreements or any of their Subsidiariesother arrangements (each, including without limitation property carried on the books of the Bank as a “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,Lease” and together with the Owned Real Property, collectively, the “Company PropertiesLeases”). Except for , together with a brief description of the principal terms thereof, to which the Company Propertiesis a party (true, as correct and complete copies of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries which have good and marketable title previously been furnished to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transferSafeNet), in each case free setting forth (A) the landlord and clear tenant or sublessor and sublessee, as applicable, thereof and the date and term of any and all Liens, except Permitted Liens. To the Knowledge each of the CompanyLeases, there are no material unpaid bills (B) the legal description or claims for work performed on or at the Company Propertiesstreet address of each property covered thereby, except for such as are not yet due and payable. None (C) a brief description (including size and function) of the Owned Real Property is leased by principal improvements and buildings thereon (the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the “Leased Real Property is valid, binding, enforceable, and Premises”). The Leases are in full force and effect, effect and have not been amended and neither the Company nor the Bank nor any of their Subsidiariesnor, nor to the Knowledge knowledge of the Company, any other party to thereto is in default or breach under any such leaseLease, is in breach or default under or in violation of, in any material respect, any provision of any such leaseexcept as set forth on Schedule 3.13(b). The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who No event has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists occurred which, with the passage of time or the giving of notice, notice or both, would reasonably be expected cause a material breach of or default by the Company under any of such Leases, except as set forth on Schedule 3.13(b). To the knowledge of the Company, there is no breach or anticipated breach by any other party to result such Leases. With respect to each of the Leased Premises:
(i) To the knowledge of the Company, the Company has valid leasehold interests in the termination Leased Premises, which leasehold interests, to the knowledge of the Company, are free and clear of any Liens, covenants and easements or material reduction title defects of any nature whatsoever, except for Permitted Liens and as set forth on Schedule 3.13(b);
(ii) The Company has not received notice of (A) any condemnation proceeding with respect to any portion of the Leased Premises or impairment any access thereto, and, to the knowledge of the Company, no such access. All existing utilities provided at proceeding is contemplated by any Governmental Authority; or (B) any special assessment which may affect any of the Leased Premises, and, to the knowledge of the Company, no such special assessment is contemplated by any Governmental Authority; and
(iii) The Company has not received any notice from any insurance company of any defects or inadequacies in the Leased Premises or any part thereof which could adversely affect the insurability of the Leased Premises or the premiums for the insurance thereof.
(c) Except as set forth on Schedule 3.13(c), the Company Properties are adequate in owns or leases all material respects buildings, machinery, equipment and other tangible assets reasonably necessary for the conduct of its businesses as presently conducted and as presently proposed by the Company Parties’ to be conducted and their Subsidiaries’ existing use and operation disclosed to SafeNet on or before the Closing Date. Each such tangible asset which is necessary for, or used in connection with, the conduct of the business of the Company Propertiesas currently conducted and as proposed by the Company to be conducted and disclosed to SafeNet on or before the Closing Date is free from material defects and is in good operating condition and repair (subject to normal wear and tear), and is suitable for the purposes for which it presently is used and presently is proposed by the Company (and disclosed to SafeNet on or before the Closing Date) to be used by the Company.
(ixd) The Except for Permitted Liens and as set forth on Schedule 3.13(d), the Company and the Bank and their Subsidiaries have has good and marketable title to all personal property owned by them, in each case of its assets free and clear of any and from all Liens.
(e) For purposes of this Agreement, except “Permitted Lien” shall mean (i) liens for Permitted Liens. In each case except astaxes not yet due or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with applicable GAAP; (ii) such minor encumbrances, individually easements or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bankreservations of, or any rights of their Subsidiariesothers for, leases personal sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning restrictions as to the use of real properties, which do not materially interfere with the use, occupation and enjoyment of the property is valid, binding, enforceable, subject to the lien by and in full force and effect, and neither connection with the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries applicable business; (iii) liens incurred in the ordinary course consistent of business in connection with past practiceworkers’ compensation, unemployment insurance and other types of social security; and (iv) liens in favor of customs authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods to the extent accrued on the relevant Company Financial Statements (as defined above).
Appears in 1 contract
Real and Personal Property. (i) Set forth on Schedule 4.2(t)(i4.2(s)(i) of the Company First Advantage Disclosure Memorandum is a true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company or the Bank or any of their respective Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate ownedOther Real Estate Owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their respective Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company First Advantage Properties”). Except for the Company First Advantage Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their respective Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests held as a creditor in real property securing Bank Loans (as defined below).
(ii) Loans. The Company and the Bank and their respective Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except for Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their respective Subsidiaries.
(iii) . There are no material unpaid bills or claims for work performed on or at the First Advantage Properties other than bills for work that has been performed but which are not yet due and payable. Each lease pursuant to which the Company or the Bank or their respective Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their respective Subsidiaries, nor nor, to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, of any provision of any such lease. The Company First Advantage Parties have previously delivered or made available to BancShares Reliant a true, correct, and complete copy of each such lease, including any all amendments thereto. The Company Each of the First Advantage Properties is in good condition (normal wear and tear excepted), conforms with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the First Advantage Parties to be adequate for the current business of the First Advantage Parties and their respective Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Owned Real Property or the Leased Real Property encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way and none of the buildings, structures, or other improvements located on any parcel adjoining any of the Owned Real Property or, to the Knowledge of the Company, the Leased Real Property encroaches upon or over any portion of the First Advantage Properties.
(ii) The First Advantage Parties and their respective Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is . The First Advantage Properties are not subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company First Advantage Parties’ or their respective Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) First Advantage Properties. There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company First Advantage Properties other than the Company First Advantage Parties and their respective Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business First Advantage Properties that materially and adversely affect the Company Parties’ or rights of the First Advantage Parties and their Subsidiaries’ use of or right respective Subsidiaries to use the Company Business First Advantage Properties for the conduct of their business.
(viiii) None of the Company First Advantage Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company First Advantage Properties, or any such building, structure, fixture, or improvement, will or may be the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company First Advantage Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company First Advantage Properties as currently used and operated by the Company First Advantage Parties and their respective Subsidiaries.
(viiiv) To the Knowledge None of the Company, none of the Company First Advantage Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company First Advantage Properties are appropriately zoned for each of the purposes for which they are being used by the Company First Advantage Parties and their respective Subsidiaries.
(viiiv) Neither the Company nor the Bank, nor any of their respective Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their respective Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to could prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to may result in the termination of or the material reduction or impairment of such access. All existing utilities provided at the Company First Advantage Properties are adequate in all material respects for the Company First Advantage Parties’ and their respective Subsidiaries’ existing use and operation of the Company First Advantage Properties.
(ixvi) The Company and the Bank and their respective Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each Each lease pursuant to which the Company or the Bank, or any of their respective Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their respective Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their respective Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their respective Subsidiaries in the ordinary course consistent with past practice.
Appears in 1 contract
Real and Personal Property. (ia) Set Except as set forth on Schedule 4.2(t)(i) of 4.10(a), neither the Company Disclosure Memorandum is nor any of its Subsidiaries owns any real property.
(b) Schedule 4.10(b) sets forth a true, correct, and complete list (by street address) as of the date of this Agreement of all real property owned by the Company leased or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property sub-leased by the Company or the Bank or any of their its Subsidiaries (the “Leased Real Property,”). All leases or sub-leases relating to Leased Real Property are identified on Schedule 4.10(b) (each a “Lease” and together with the Owned Real Property, collectively, the “Company PropertiesLeases”). Except for ) and the Company Propertieshas made available to Buyer’s counsel a correct and complete copy of each Lease, as amended to date. With respect to each Lease listed on Schedule 4.10(b ):
(i) such Lease is legal, valid, binding and enforceable against each party thereto, subject to applicable bankruptcy, insolvency, moratorium or other similar Laws relating to creditors’ rights and general principles of equity;
(ii) each Lease listed on Schedule 4.10(b) has been duly authorized and executed by the date of this AgreementCompany or such Subsidiary, as applicable;
(iii) neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their SubsidiariesSubsidiary, nor to the Knowledge of the Company, any other party to any such leaseLease, is in breach or default under or in violation of, in any material respect, respect under any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Propertysaid Leases, and no parcel event has occurred which, with notice or lapse of Leased Real Property is subject to time, would constitute a material default or permit termination, material modification or acceleration under any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.said Leases;
(iv) There is no Person in possession or occupation of, or who neither the Company nor any Subsidiary has any current obligation or right to possession purchase or occupation of, acquire the Company Properties property subject to said Lease or any other than the Company Parties and their Subsidiaries.real estate interest; and
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither neither the Company nor the Bank, nor any of their Subsidiaries, Subsidiary has experienced any material restriction in access to or from public roads or any material restriction in access granted to any utilitiesPerson or entity, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact Person or condition exists whichentity has, with the passage any option, right of time first refusal or the giving of notice, other contractual right or both, would reasonably be expected obligation to result in the termination of or material reduction or impairment acquire title to any of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Propertiesproperty or any portion thereof or interest therein.
(ixc) The Except as set forth on Schedule 4.10(c ) or as specifically disclosed in the Latest Audited Balance Sheet, and except with respect to leased personal property, the Company and the Bank and their each of its Subsidiaries have good and marketable title to all of the tangible personal property owned by themand assets shown on the Latest Audited Balance Sheet or acquired after the date of the Latest Audited Balance Sheet, in each case free and clear of any and all LiensEncumbrances, except for Permitted Liens. In each case For the purposes of this Agreement, (i) “Encumbrance” shall mean any lien, pledge, charge, mortgage, easement, encroachment, imperfection of title, title exception, title defect, right of possession, lease, security interest, encumbrance, adverse claim, interference or restriction on transfer (except asfor restrictions arising under applicable securities Laws), including a Permitted Lien; and (ii) “Permitted Lien” shall mean (A) Encumbrances securing Indebtedness for Borrowed Money that is specifically disclosed in the Latest Audited Balance Sheet, (B) Encumbrances for Taxes, fees, assessments or other governmental charges which are not delinquent or remain payable without penalty or which are being contested in good faith and which in any event do not exceed $1,000,000, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company(C) carriers’, each lease pursuant to which the Company warehousemens’, mechanics’, landlords’, materialmens’, repairmens’ or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries similar Encumbrances arising in the ordinary course consistent of business relating to obligations as to which there is no default on the part of Company and which in any event do not exceed $1,000,000, individually or in the aggregate, (D) Encumbrances consisting of pledges or deposits required in the ordinary course of business in connection with past practiceworkers’ compensation, unemployment insurance and other social security legislation or to secure liability to insurance carriers and which in any event do not exceed $1,000,000, individually or in the aggregate, (E) Encumbrances set forth on Schedule 4.10(c) and (F) Encumbrances of record or imperfections of title which are not material in character, amount or extent and which do not materially detract from the value or materially interfere with the present use of the assets or specific parcel of Leased Real Property to which they relate.
Appears in 1 contract
Real and Personal Property. (ia) Set forth on Schedule 4.2(t)(iExcept as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company, the Company has good and marketable title to, or valid leasehold interests in, all of its properties and assets, free and clear of all Encumbrances, except for Permitted Encumbrances. The Company enjoys peaceful and undisturbed possession under all occupancy agreements for Leased Real Property, except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b) Section 3.15(b) of the Company Disclosure Memorandum is Schedule sets forth a true, correct, complete and complete correct list (by street address) as of the date of this Agreement of all real property owned leased, subleased, licensed and/or otherwise used or occupied (whether as tenant, subtenant, licensee or pursuant to any other occupancy arrangement (whether written or otherwise)) by the Company or in connection with the Bank or any operation of their Subsidiariesthe Company’s business as it is now being conducted (collectively, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”)improvements thereon, and all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together with ”).
(c) Except as set forth in Section 3.15(c)(i) of the Owned Company Disclosure Schedule, no Person, other than the Company, possesses, uses or occupies all or any portion of any Leased Real Property, collectively, the “Company Properties”). Except for Section 3.15(c)(ii) of the Company PropertiesDisclosure Schedule sets forth a true, complete and correct list as of the date of this AgreementAgreement of all subleases, neither the Company nor the Bank nor any of their Subsidiaries holds any interest licenses or other occupancy arrangements (fee, leasehold, whether written or otherwise) in pursuant to which any real propertyPerson, other than interests as the Company, possesses, uses or occupies all or any portion of the Leased Real Property (each, a creditor in real property securing Bank Loans (as defined below“Sublease”).
(iid) The Company and the Bank and their Subsidiaries have good and marketable title does not own in fee any real property. With respect to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge of the Company, there are no material unpaid bills or claims for work performed on or at the Company Properties, except for such as are not yet due and payable. None of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Company or the Bank or their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge of the Company, any other party to any such lease, is in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There there are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge knowledge of the Company, threatened governmental action that has prohibited proceedings to take all or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge any portion of the Company, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bank, Leased Real Property or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and interest therein by eminent domain or any condemnation proceeding or any sale or disposition in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practicelieu thereof.
Appears in 1 contract
Real and Personal Property. (ia) Set forth on Schedule 4.2(t)(iSection 3.17(a) of the Company Bank Disclosure Memorandum is Letter sets forth a true, correct, true and complete list of all real property owned, leased or licensed by the Bank or its Subsidiaries or otherwise occupied by the Bank or any of its Subsidiaries.
(by street addressb) as of the date of this Agreement of The Bank and its Subsidiaries have good, valid and marketable title to all real property owned by the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Company Properties”). Except for the Company Properties, as of the date of this Agreement, neither the Company nor the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case them free and clear of any and all Liens, except Permitted Liens. To the Knowledge knowledge of the CompanyBank, there are no material unpaid bills outstanding options, rights of first offer or claims for work performed on refusal or at other preemptive rights or purchase rights with respect to any such owned real property. There are no pending or, to the Company PropertiesBank’s knowledge, except for threatened, condemnation or similar proceedings affecting such as are not yet due owned real property or any portion thereof. All real property and payable. None fixtures used in or relevant to the business, operations or financial condition of the Owned Real Property is leased by the Company or the Bank or any of their Subsidiariesand its Subsidiaries are in good condition and repair.
(iiic) The Bank and its Subsidiaries have good, valid and marketable title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all material tangible personal property owned by them, free and clear of all Liens (other than Permitted Liens). Each lease pursuant of the Bank and its Subsidiaries has complied with the terms of all leases to which the Company or the Bank or it is a party, and all such leases are valid and binding in accordance with their Subsidiaries lease the Leased Real Property is valid, binding, enforceable, respective terms and in full force and effect, and neither the Company nor there is not under any such lease any material existing default by the Bank nor any of their Subsidiariesor such Subsidiary or, nor to the Knowledge knowledge of the CompanyBank, any other party to any such lease, is in breach or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real Property, and no parcel of Leased Real Property is subject to any legally binding lease, tenancy, or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use by the Company or the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge of the Company, none of the buildings, structures, or other improvements located on any of the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, or any such building, structure, fixture, event which with notice or improvement, will or may the subject of, or affected by, any such proceeding. There are no special, general, or other assessment proceedings affecting the Company Properties which, if as a result of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or any applicable state or local agency. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists which, with the passage lapse of time or the giving of notice, or both, both would reasonably be expected to result in the termination of or material reduction or impairment of constitute such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liensa default, except for Permitted Liens. In each case except asany such noncompliance, default or failure to be in full force and effect that would not, individually or in the aggregate, has not had and would not reasonably be expected to have a Bank Material Adverse Effect on Effect. All rent and other sums and charges due and payable under such leases have been paid in full. Section 3.17(c) of the Company, each lease pursuant to Bank Disclosure Letter sets forth all material leases of the Bank and its Subsidiaries as of the date hereof.
(d) Other than (i) properties for which the Company or the Bank, Bank or any of their Subsidiariesits Subsidiaries is landlord or sublessor or (ii) properties the Bank or its Subsidiaries own as satisfaction on a debt previously contracted, leases personal property is valid, binding, enforceable, and there are no Persons in full force and effect, and neither the Company nor the Bank, nor possession of any portion of any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under or in breach or violation of any provision of any such lease. The personal real property owned or leased by the Company and Bank or its Subsidiaries other than the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear exceptedor its Subsidiaries, and is reasonably sufficient no Person other than the Bank or its Subsidiaries has the right to use or occupy for the carrying on any purpose any portion of any of the business of the Company and real property owned or leased by the Bank and their Subsidiaries in the ordinary course consistent with past practiceor its Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Iberiabank Corp)
Real and Personal Property. (ia) Set Leased Real Property. Schedule 3.17(a) sets forth on Schedule 4.2(t)(i) of the Company Disclosure Memorandum is a true, correct, correct and complete list (by street address) as of all locations of the date of this Agreement of all real property owned by the Company or the Bank or any of their Subsidiaries, including without limitation property carried on the books of the Bank as “other real estate owned” (the “Owned Real Property”), and all real property leased by the Company or the Bank or any of their Subsidiaries (the “Leased Real Property,” and together with the Owned Real Property, collectivelyincluding, for each such location, the “Company Properties”). Except for the Company Propertiesapproximate rented square footage, as number of employees of the date of this AgreementGroup Companies working there, neither base monthly rental amount, total annual rental amount, and scheduled lease expiration date. Each Lease is valid and binding on the Group Company nor party thereto, and to the Bank nor any of their Subsidiaries holds any interest (fee, leasehold, or otherwise) in any real property, other than interests as a creditor in real property securing Bank Loans (as defined below).
(ii) The Company and the Bank and their Subsidiaries have good and marketable title to all of the Owned Real Property (including any property acquired in a judicial foreclosure proceeding or by way of a deed in lieu of foreclosure or similar transfer), in each case free and clear of any and all Liens, except Permitted Liens. To the Knowledge knowledge of the Company, against any party thereto, enforceable in accordance with its terms (subject to proper authorization and execution of such 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). Except as set forth on Schedule 3.17(a), each of the Group Companies, and, to the Company’s knowledge, each of the other parties thereto, has performed all material obligations required to be performed by it under each Lease. Except as disclosed on Schedule 3.17(a), (i) there are no material unpaid bills subleases or claims for work performed similar written agreements granting to any Person other than a Group Company the right to use or occupy any Leased Real Property, (ii) there are no outstanding options or rights of first refusal to purchase all or a portion of such properties, and (iii) no Group Company has pledged, mortgaged or otherwise granted a Lien on its leasehold interest in any Leased Real Property. True, correct and complete copies of each Lease has been provided to Parent. The buildings, fixtures and other improvements located at each Leased Real Property are in reasonably good condition (ordinary wear and tear excepted) and are not in need of maintenance or at the Company Propertiesrepairs, except for such as ordinary, routine maintenance and repairs that are not yet due and payable. None of material in nature or cost or to the Owned Real Property is leased by extent reserved for, written off or written down in the Company or the Bank or any of their Subsidiaries.
(iii) Each lease pursuant to which the Financial Statements. No Group Company or the Bank or their Subsidiaries lease the Leased Real Property is validor, binding, enforceable, and in full force and effect, and neither the Company nor the Bank nor any of their Subsidiaries, nor to the Knowledge knowledge of the Company, any other party to any such leaseLease, is in breach of or default under or in violation of, in any material respect, any provision of any such lease. The Company Parties have previously delivered or made available to BancShares a true, correct, and complete copy of each such lease, including any amendments thereto. The Company Parties and their Subsidiaries are entitled to and have exclusive possession of the Leased Real PropertyLease, and no parcel event has occurred that with notice or lapse of Leased Real Property is subject to any legally binding leasetime or both, tenancy, would constitute such a breach or license or any legally binding agreement to grant any such lease, tenancy, or license that materially interferes or would reasonably be expected to materially interfere with the Company Parties’ or their Subsidiaries’ occupancy or use of the Leased Real Property.
(iv) There is no Person in possession or occupation of, or who has any current right to possession or occupation of, the Company Properties other than the Company Parties and their Subsidiaries.
(v) Each of the Company Properties that is used or held for use default by the applicable Group Company or or, to the Bank or any of their Subsidiaries in connection with the business or operations of the Company or the Bank or any of their Subsidiaries (the “Company Business Properties”) is in reasonably good condition (normal wear and tear excepted), conforms in all material respects with all applicable ordinances, regulations, and zoning and other Laws, and is reasonably considered by the Company Parties and their Subsidiaries to be adequate for the current business of the Company Parties and their Subsidiaries. To the Knowledge knowledge of the Company, none of the buildings, structuresany other party to such Lease, or other improvements located on that would permit termination, modification or acceleration under such Lease
(b) Owned Real Property. Schedule 3.17(b) sets forth the address of each Owned Real Property. With respect to each Owned Real Property: (i) the Group Company has good and marketable indefeasible fee simple title to such Owned Real Property, free and clear of all Liens, except Permitted Liens, (ii) except as set forth in Schedule 3.17(b), Company or Subsidiary has not leased or otherwise granted to any of Person the Company Business Properties encroaches upon or over any adjoining parcel of real estate or any easement or right-of-way, and none of the buildings, structures, or other improvements located on any parcel adjoining the Company Business Properties encroaches upon or over any portion of the Company Business Properties. There are no easements of any kind on, in respect of, or affecting the Company Business Properties that materially affect the Company Parties’ or their Subsidiaries’ use of or right to use the Company Business Properties for the conduct of their business.
(vi) None of the Company Properties, nor any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain, or inverse condemnation proceeding currently instituted or pending, and the Company has no Knowledge that any of the Company Properties, occupy such Owned Real Property or any such buildingportion thereof; (iii) other than the right of Parent pursuant to this Agreement, structure, fixture, or improvement, will or may the subject of, or affected by, any such proceeding. There there are no specialoutstanding options, general, rights of first offer or other assessment proceedings affecting the Company Properties which, if as a result rights of which a special, general, or other assessment were imposed, would materially increase the cost of using and operating the Company Properties as currently used and operated by the Company Parties and their Subsidiaries.
(vii) To the Knowledge of the Company, none of the Company Properties are located in any special flood hazard area or zone on any official flood hazard map published by the United States Federal Emergency Management Agency or in any wetland area as designated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, first refusal to purchase such Owned Real Property or any applicable state portion thereof or local agencyinterest therein. The Company Properties are appropriately zoned for each of the purposes for which they are being used by the Company Parties and their Subsidiaries.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, has experienced any material restriction in access to or from public roads or any material restriction in access to any utilities, including without limitation water, sewer, drainage, gas, electric, telephone, cable, and internet, used by the Company or the Bank or any of their Subsidiaries in the operation of their business as presently conducted; there Subsidiary is no pending or, to the Knowledge of the Company, threatened governmental action that has prohibited or materially interfered with or would reasonably be expected to prohibit or materially interfere with such access; and, to the Knowledge of the Company, no fact or condition exists which, with the passage of time or the giving of notice, or both, would reasonably be expected to result in the termination of or material reduction or impairment of such access. All existing utilities provided at the Company Properties are adequate in all material respects for the Company Parties’ and their Subsidiaries’ existing use and operation of the Company Properties.
(ix) The Company and the Bank and their Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of any and all Liens, except for Permitted Liens. In each case except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, each lease pursuant to which the Company or the Bank, or any of their Subsidiaries, leases personal property is valid, binding, enforceable, and in full force and effect, and neither the Company nor the Bank, nor any of their Subsidiaries, nor to the Knowledge of the Company any other party to any such lease, is in default under agreement or in breach option to purchase any real property or violation of any provision of any such lease. The personal property owned or leased by the Company and the Bank and their Subsidiaries is in reasonably good condition, normal wear and tear excepted, and is reasonably sufficient for the carrying on of the business of the Company and the Bank and their Subsidiaries in the ordinary course consistent with past practiceinterest therein.
Appears in 1 contract
Sources: Stock Purchase Agreement (Church & Dwight Co Inc /De/)