Common use of Real Property; Assets Clause in Contracts

Real Property; Assets. (a) The Company Group has good and valid title to, or valid leasehold interest in or valid license to, all real property necessary in the ordinary conduct of its business as currently conducted. The tangible property and assets that the Company owns are free and clear of all mortgages, deeds of trust, liens, loans and encumbrances, except for Permitted Liens. With respect to the tangible property and assets it leases, the Company Group is in material compliance with such leases and holds a valid leasehold interest free of any liens, claims or encumbrances other than those of the lessors of such property or assets. The Company Group does not own any real property. (b) After giving effect to the licenses granted to the Company Group under the Omnibus License Agreement and the services provided to the Company Group under the Intercompany Services Agreement, the Company Group has good and valid title to all tangible and intangible assets used or held for use in, or necessary for the conduct of, its business as currently conducted as of the Effective Date, and the assets, including any Intellectual Property, owned, licensed or leased by the Company Group constitute all of the assets reasonably necessary for the continued conduct of the business after the Closing in the ordinary course, including, for the avoidance of doubt, for the Company Group to be able to provide services for the Purchaser’s contemplated projects, products and purchase orders as set forth on Schedule 4.15(b)(i) (the “Contemplated Projects”); for the avoidance of doubt, the Purchaser shall have no obligation to enter into any Contract with the Company Group for any or all of the Contemplated Projects, and the Company Group shall have no right to provide services with respect thereto unless such services are contemplated in a Contract between the Purchaser and the Company Group. Except as set forth on Schedule 4.15(b)(ii), no Related Party (other than members of the Company Group) has any right, title or interest in, to or under any of the properties, assets or rights (of any kind and whether tangible or intangible or real or personal) used in, held for use in connection with or relating to the business of the Company Group. As of the Effective Date, all of the assets contemplated by this Section 4.15(b) are free and clear of all liens and have been maintained in the ordinary course of business, are in good operating condition, subject to normal wear and tear, and are suitable for the purposes for which they are currently used.

Real Property; Assets. (ai) The Section 3.1(k)(i) of the Company Group has good Disclosure Schedule contains a true, correct and valid title to, or valid leasehold interest in or valid license to, complete list and street addresses of all the real property necessary in the ordinary conduct of its business as currently conducted. The tangible property and assets that owned by the Company owns are and its Subsidiaries (the “Owned Real Property”), and a true, correct and complete list and street addresses of all the real property leased by the Company and its Subsidiaries (the “Leased Real Property” and together with the Owned Real Property, the “Real Property”). Except as set forth in Section 3.1(k)(i) of the Company Disclosure Schedule, the Company or its Subsidiaries has valid and legal fee title to the Owned Real Property, including any rights of way or easements running to the benefit of such Owned Real Property, free and clear of all mortgagesLiens (except Permitted Liens). The Company has provided to Parent true, correct and complete copies of all deeds and other title documents set forth in Section 3.1(k)(i)(A) of trustthe Company Disclosure Schedule pertaining to such Owned Real Property. Except as set forth in Section 3.1(k)(i) of the Company Disclosure Schedule, liensthe Company or its Subsidiaries has a valid leasehold interest in all Leased Real Property. Each Contract relating to such Leased Real Property is in full force and effect on the date hereof and will be in full force and effect on the Closing Date. There does not exist under any Contract governing the Leased Real Property any default or condition or event that, loans after notice or lapse of time or both, would constitute a default on the part of the Company or such Subsidiary or, to the Knowledge of the Company, on the part of any other parties to such lease governing the Leased Real Property. The consummation of the transactions contemplated hereby shall not under the terms of any Contract governing the Leased Real Property, (i) impose any material penalty or additional fee upon Parent, Merger Sub or the Company, (ii) cause the provisions of any such lease to be altered in any material and encumbrancesadverse respect, or (iii) cause a material breach or default with respect to any existing Contract governing Leased Real Property. With respect to the Real Property, except as disclosed in Section 3.1(k)(i) of the Company Disclosure Schedule: (A) neither the Company nor any of its Subsidiaries has entered into any written sublease, license, option, right, concession or other agreement or arrangement granting to any Person the right to use or occupy such parcel of Real Property or any portion thereof or interest therein, except for Permitted Liens. With ; (B) within the last 12 months, neither the Company nor any of its Subsidiaries has received written notice of any pending or threatened condemnation or eminent domain proceedings or their local equivalent affecting or relating to such Real Property; (C) within the last 12 months, neither the Company nor any of its Subsidiaries has received written notice from any Governmental Authority or other Person that the use and occupancy of any of the Real Property, as currently used and occupied, and the conduct of the business thereon, as currently conducted, violates in any material respect any deed restrictions or applicable law, consisting of building codes, zoning, subdivision or other land use or similar laws; (D) all improvements on the Real Property (i) substantially conform to all applicable state and local laws, including zoning and building ordinances and health and safety ordinances, and such Real Property is zoned for the various purposes for which the Real Property and improvements thereon are presently being used, (ii) are in good repair (ordinary wear and tear excepted) and are reasonably suitable for the use presently being made of such improvements and (iii) are adequate and sufficient to the tangible operation of the business of the Company and its Subsidiaries as presently conducted. Except as disclosed in Section 3.1(k)(i) of the Company Disclosure Schedule, all improvements on Owned Real Property are wholly within the boundaries of such property, are owned by the Company or one of its Subsidiaries and do not encroach upon the property or otherwise conflict with the property rights of any Person; (E) no claim or right of adverse possession has been claimed or threatened in writing to the Company or its Subsidiaries; and assets it leases(F) any and all rights and easements (including ingress to and egress from the Real Property) necessary for the Company and its Subsidiaries to conduct the business as presently conducted on such Real Property are vested in the Company and its Subsidiaries. (ii) Except as set forth in Section 3.1(k)(ii) of the Company Disclosure Schedule, the Company Group is in material compliance with such leases and holds its Subsidiaries have valid and legal title to, a valid leasehold interest free of any liens, claims or encumbrances other than those of the lessors of such property or assets. The Company Group does not own any real property. (b) After giving effect to the licenses granted to the Company Group under the Omnibus License Agreement and the services provided to the Company Group under the Intercompany Services Agreement, the Company Group has good and valid title to all tangible and intangible assets used or held for use in, or necessary for rights to the, tangible personal property and assets which are shown on the conduct of, Balance Sheet or acquired thereafter or used by the Company and its Subsidiaries in their business as currently conducted as of the Effective Date, presently conducted. The tangible assets and the assets, including any Intellectual Property, owned, licensed properties (whether real or personal) owned or leased by the Company Group and its Subsidiaries constitute all of the material tangible assets reasonably and properties necessary to operate the business of the Company and its Subsidiaries in the Ordinary Course of Business. Except for normal wear and tear, the machinery and equipment of the Company and its Subsidiaries necessary for the continued conduct of the business after the Closing their respective businesses in the ordinary course, including, for the avoidance of doubt, for the Company Group to be able to provide services for the Purchaser’s contemplated projects, products and purchase orders as set forth on Schedule 4.15(b)(i) (the “Contemplated Projects”); for the avoidance of doubt, the Purchaser shall have no obligation to enter into any Contract accordance with the Company Group for any or all of the Contemplated Projects, and the Company Group shall have no right to provide services with respect thereto unless such services are contemplated in a Contract between the Purchaser and the Company Group. Except as set forth on Schedule 4.15(b)(ii), no Related Party (other than members of the Company Group) has any right, title or interest in, to or under any of the properties, assets or rights (of any kind and whether tangible or intangible or real or personal) used in, held for use in connection with or relating to the business of the Company Group. As of the Effective Date, all of the assets contemplated by this Section 4.15(b) are free and clear of all liens and have been maintained in the ordinary course of business, current practices are in good operating condition, subject to normal wear condition and tear, in a state of reasonable maintenance and are suitable for the purposes for which they are currently usedrepair.

Real Property; Assets. (a) Schedule 4.5(a) sets forth a correct and complete listing of all real property currently owned by any of the Companies (the “Owned Real Property”). (b) Except as set forth on Schedule 4.5(a), (i) the applicable Company has good, merchantable and marketable title to the fee simple estate in Owned Real Property, in each case free and clear of any and all Liens except for Permitted Liens; (ii) there is, to Sellers’ Knowledge, no existing violation of or nonconformity with, and the Company is not under investigation with respect to, has been charged with or has received any written communication alleging any alleged violation of or nonconformity with, any Law relating to, or any restriction, condition, covenant, commitment, contract or agreement concerning, the Owned Real Property, and/or the development, construction, ownership, operation, use and/or occupancy thereof; (iii) there is no proceeding pending or, to Sellers’ Knowledge, threatened involving the Owned Real Property before any Governmental Authority; and no Order has been entered against or served upon the Company involving the Owned Real Property that is presently in effect; (iv) the Company has not made any other agreement for sale, lease or other disposition of, or given any person an option to purchase, lease or otherwise acquire, all or any part of the Owned Real Property; (v) the Owned Real Property is not subject to any Liens not of record, arising from any act or omission of the Company, except for Permitted Liens; (vi) the Owned Real Property is in the possession of the Company, and no other person has a right to possession or claims possession of all or any part of the Owned Real Property, except the other Companies; (vii) to Sellers’ Knowledge, (A) there are, except as used in the ordinary course of business and in compliance in all material respects with applicable Law, no Hazardous Substances, or underground storage tanks, upon or in the Owned Real Property and (B) no Hazardous Substances have been produced, used, stored, handled or disposed of in or upon the Owned Real Property in violation of applicable Law; (viii) to Sellers’ Knowledge, all material approvals which are required heretofore to have been obtained by the Company from any Governmental Authority, or other public or private body or person, to comply with all Law relating to, and all restrictions, conditions, covenants, commitments, contracts and agreements concerning, the Companies’ operation and use of the Owned Real Property, have been obtained and are valid and in full force and effect in accordance with their terms; there is to Sellers’ Knowledge, no existing violation of or default under, and the Company is not under investigation with respect to, has been charged with or has received any written communication alleging any existing violation of or default under, any such approvals; there are no pending or, to Sellers’ Knowledge, threatened proceedings or investigations concerning possible limitation or revocation of any such approvals; and no such approvals will be subject to limitation or revocation, or otherwise affected, by reason of consummation of the Transactions; (ix) to Sellers’ Knowledge, all improvements on the Owned Real Property are (A) currently sufficient for the continued conduct of the Business and operations of the Companies, as currently conducted, after the Closing in substantially the same manner as conducted prior to the Closing, (B) located within the property lines of the Owned Real Property, and (C) in material conformity with any and all Laws relating to development, construction, ownership, operation, use and/or occupancy thereof; and (x)to Sellers’ Knowledge, the Owned Real Property is properly zoned for operation and use of the Business. (c) Schedule 4.5(c) sets forth a correct and complete listing of all real property currently leased, subleased, licensed, possessed, used or occupied by any of the Companies (the “Leased Real Property”). Correct and complete copies of the Contracts for each Leased Real Property (each a “Lease”) have heretofore been made available by the Companies to Purchaser. (d) Except as set forth on Schedule 4.5(c), none of the Companies hold any options or other rights to purchase or lease any real property. None of the Companies has agreed to purchase or lease any real property from any Person in the future. (e) The Company Group identified on Schedule 4.5(c) holds a valid leasehold estate in the applicable Leased Real Property, free and clear of all Liens except Permitted Liens, and each Lease for a Leased Real Property is in full force and effect, enforceable in accordance with its terms and conditions (except as may be limited by Equitable Remedies), and without material default thereunder by the Company, or, to the Sellers’ Knowledge, the landlord. There are no pending or, to the Sellers’ Knowledge, threatened, condemnation, eminent domain or similar proceedings affecting the Leased Real Property. Other than the applicable Company and the lessor or landlord with respect to Leased Real Property, to Sellers’ Knowledge, no Person has any rights to possess, occupy, operate from or use the Leased Real Property or any portion thereof. (f) Except as set forth in Schedule 4.5(f), no Seller Party owns any assets (or intangible) used in or necessary for the conduct of the Business. The Companies collectively own or lease under valid leases all assets necessary for the conduct of the Business as presently conducted. The Companies collectively have good and valid title to, or a valid leasehold interest in or valid license toin, all real property necessary in of the ordinary conduct material tangible assets of its business as currently conducted. The tangible property and assets that the Company owns are Companies, free and clear of all mortgages, deeds of trust, liens, loans and encumbrancesLiens, except for Permitted Liens. With respect to the tangible property and assets it leases, the Company Group is in material compliance with such leases and holds a valid leasehold interest free of any liens, claims or encumbrances other Other than those of the lessors of such property or assets. The Company Group does not own any real property. (b) After giving effect to the licenses granted to the Company Group under the Omnibus License Agreement and the services provided to the Company Group under the Intercompany Services Agreement, the Company Group has good and valid title to all tangible and intangible assets used or held for use in, or necessary for the conduct of, its business as currently conducted as of the Effective Date, and the assets, including any Intellectual Property, owned, licensed or leased by the Company Group constitute all of the assets reasonably necessary for the continued conduct of the business after the Closing in the ordinary course, including, for the avoidance of doubt, for the Company Group to be able to provide services for the Purchaser’s contemplated projects, products and purchase orders as set forth on Schedule 4.15(b)(i) (the “Contemplated Projects”4.5(f); for the avoidance of doubt, the Purchaser shall have no obligation to enter into any Contract with the Company Group for any or all none of the Contemplated Projects, and assets of the Company Group shall have no right to provide services with respect thereto unless such services Companies are contemplated in a Contract between the Purchaser and the Company Group. possession of others. (g) Except as set forth on in Schedule 4.15(b)(ii4.5(g) and for physical damage for which adequate accruals are reflected in the Financial Statements, the Rolling Stock, taken as a whole, (i) is in the Companies’ possession and control, (ii) is in good operating condition and repair (subject to reasonable wear, repairs, and maintenance), no Related Party (other than members of the Company Groupiii) has any right, title or interest in, to or under any of the properties, assets or rights (of any kind and whether tangible or intangible or real or personal) used in, held for use in connection with or relating to the business of the Company Group. As of the Effective Date, all of the assets contemplated by this Section 4.15(b) are free and clear of all liens and have been maintained is usable in the ordinary course of business, are (iv) is properly and currently licensed and registered and is otherwise in good operating conditionsubstantial conformance with applicable Law, subject Permits, warranties and maintenance schedules relating to normal wear its modification, use and tearoperation, and (v) has been maintained and serviced in a manner materially consistent with manufacturers’ recommendations and requirements, United States Department of Transportation standards and the standards of any other Governmental Authority applicable to the Rolling Stock. Schedule 4.5(g) sets forth the Rolling Stock owned by each of the Companies as of the Closing Date (including year, make, model, VIN, and approximate mileage, as applicable). Schedule 4.5(g) describes in reasonable detail the repurchase, or trade-back credit and other material arrangements regarding any owned Rolling Stock and any restrictions on transferability on change in control regarding such underlying agreements to which any of the Companies is a party. (h) All Rolling Stock has been operated at all times in material compliance with applicable secured notes and other financing documents. None of the Companies leases any Rolling Stock from unaffiliated third parties. There are suitable no late fees, penalties, or other amounts owing under any Rolling Stock secured note or other financing document for Rolling Stock to which any of the purposes Companies is a party (for which they are currently usedclarity, the foregoing does not include prepayment penalties that may apply if certain Indebtedness with respect to the Rolling Stock is repaid before maturity), other than any current monthly payment that is not yet due.

Real Property; Assets. (a) The Neither the Company Group has good and valid title to, or valid leasehold interest in or valid license to, all real property necessary in the ordinary conduct nor any of its business as currently conducted. The tangible property and assets that the Company Subsidiaries owns are free and clear of all mortgages, deeds of trust, liens, loans and encumbrances, except for Permitted Liens. With respect to the tangible property and assets it leases, the Company Group is in material compliance with such leases and holds a valid leasehold interest free of any liens, claims or encumbrances other than those of the lessors of such property or assets. The Company Group does not own has owned any real property. Section 5.19(a) of the Company Disclosure Schedule contains a complete and accurate list of Leased Real Property. The Leased Real Property constitutes all of the real property occupied or operated by the Company and its Subsidiaries in connection with their business. (b) After giving effect Each lease related to the licenses Leased Real Property to which the Company or any of its Subsidiaries is a party is a legal, valid, binding and enforceable obligation of each of the parties thereto and is in full force and effect. The Company and its Subsidiaries have valid leasehold interests in, and enjoy undisturbed possession of, all Leased Real Property. Neither the Company nor any of its Subsidiaries is in material breach or material default under any such lease, and no condition exists which (with or without notice or lapse of time or both) would constitute a default by the Company or any of its Subsidiaries thereunder or, to the knowledge of the Company, by the other parties thereto. (c) Neither the Company nor any of its Subsidiaries have subleased or otherwise granted any Person the right to use or occupy any Leased Real Property, which is still in effect. Neither the Company nor any of its Subsidiaries have mortgaged, deeded in trust, collaterally assigned or granted any other security interest in the Leased Real Property or any interest therein, which is still in effect. Except for Permitted Liens, there exist no Liens affecting all or any portion of the Leased Real Property created by, through or under the Company or any of its Subsidiaries. (d) There are no pending, or to the knowledge of the Company, threatened (i) Actions or other proceedings to take all or any portion of the Leased Real Property or any interests therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or (ii) sales or dispositions in relation to any such Action or proceeding. There is no purchase option, right of first refusal, first option or other similar right held by the Company or any of its Subsidiaries with respect to, or any real estate, building or other improvement affected by, any portion of the Leased Real Property. (e) The Company and its Subsidiaries have good title to, or in the case of leased properties and assets, have valid leasehold interests in, all of the property and assets (whether personal, tangible or intangible) reflected on the Interim Financial Statements or acquired by the Company and its Subsidiaries since June 30, 2021, except for properties, assets and rights sold since June 30, 2021 in the Ordinary Course of Business (or, with respect to such properties and assets sold after the date of this Agreement, as permitted pursuant to Section 7.01) or where the failure to have such good title or valid leasehold interests would not be material to the Company Group under the Omnibus License Agreement and the services provided its Subsidiaries, taken as a whole. None of such property, assets and rights is subject to any Lien (other than Permitted Liens). The assets of the Company Group under the Intercompany Services Agreement, the Company Group has good and valid title its Subsidiaries to be acquired by DSAC pursuant to this Agreement constitute all material tangible and intangible assets used or held for use in, or necessary for the conduct of, its business as currently conducted as of the Effective Date, and the assets, including any Intellectual Property, owned, licensed or leased by the Company Group constitute all and its Affiliates in, and necessary and sufficient for the operation of the assets reasonably necessary for the continued conduct of the business after the Closing in the ordinary course, including, for the avoidance of doubt, for the Company Group to be able to provide services for the Purchaser’s contemplated projects, products and purchase orders as set forth on Schedule 4.15(b)(i) (the “Contemplated Projects”); for the avoidance of doubt, the Purchaser shall have no obligation to enter into any Contract with the Company Group for any or all of the Contemplated Projects, and the Company Group shall have no right to provide services with respect thereto unless such services are contemplated in a Contract between the Purchaser and the Company Group. Except as set forth on Schedule 4.15(b)(ii), no Related Party (other than members businesses of the Company Group) has any right, title or interest in, to or under any of the properties, assets or rights (of any kind and whether tangible or intangible or real or personal) used in, held for use in connection with or relating to the business of the Company Group. As of the Effective Date, all of the assets contemplated by this Section 4.15(b) are free and clear of all liens and have been maintained in the ordinary course of business, are in good operating condition, subject to normal wear and tear, and are suitable for the purposes for which they are currently usedits Subsidiaries as presently operated.

Real Property; Assets. (a) The Company Group has good and valid title to, or valid leasehold interest in or valid license to, all real property necessary in the ordinary conduct of its business as currently conducted. The tangible property and assets that Neither the Company nor its Subsidiary owns are free and clear of all mortgages, deeds of trust, liens, loans and encumbrances, except for Permitted Liens. With respect to the tangible property and assets it leases, the Company Group is in material compliance with such leases and holds a valid leasehold interest free of any liens, claims or encumbrances other than those of the lessors of such property or assets. The Company Group does not own any real property. (b) After giving effect to Schedule 3.12 of the licenses granted to the Company Group under the Omnibus License Agreement and the services provided to the Company Group under the Intercompany Services Agreement, the Company Group has good and valid title to all tangible and intangible assets used or held for use in, or necessary for the conduct of, its business as currently conducted Disclosure Schedules contains as of the Effective Datedate hereof a true, complete and correct list of all real property leased, subleased or licensed by the Company or its Subsidiary or with respect to which the Company or its Subsidiary has the right to use, occupy or access pursuant to real property Contracts (the “Leased Real Property”), and the assetsContracts pursuant to which such Leased Real Property is leased, subleased or licensed (the “Leases”), and the name of the third party lessor, lessee, sublessor or sublessee, the name of the applicable Company party, the location of the applicable premises, and the date of the lease or sublease and all amendments thereto. The Company has provided Buyer true, complete and accurate copies of each Lease, including any Intellectual Propertyguarantees, ownedletters of credit, modifications, amendments, extensions and/or assignments thereto or thereof. (c) With respect to each of the Leases: (i) such Lease is legal, valid, binding and enforceable against the Company or its Subsidiary, has not been modified and is in full force and effect, subject to proper authorization and execution of such Lease by the other parties thereto and the application of any bankruptcy laws or other creditor’s rights laws, (ii) the Transactions do not require the consent, notice or approval of any other party to such Lease and shall not result in a violation, breach of or default under such Lease or result in a termination or give a right of termination, acceleration, cancelation or modification of such Lease, (iii) the Company or its Subsidiary is not in breach or default under any such Lease beyond any applicable notice and cure period and no event has occurred and, to the Company’s Knowledge, no circumstance exists which, if not remedied, and whether with or without notice or the passage of time or both, would result in a breach or default and (iv) neither the Company nor its Subsidiary has leased, subleased or licensed to any Person the right to use or leased occupy such Leased Real Property or any portion thereof. Within the past twelve (12) months, neither the Company nor its Subsidiary has received or given any written notice of any default or event that with notice or lapse of time, or both, would constitute a default by the Company Group constitute all of the assets reasonably necessary for the continued conduct of the business after the Closing in the ordinary courseor its Subsidiary, including, for the avoidance of doubt, for the Company Group to be able to provide services for the Purchaser’s contemplated projects, products and purchase orders as set forth on Schedule 4.15(b)(i) (the “Contemplated Projects”); for the avoidance of doubt, the Purchaser shall have no obligation to enter into any Contract with the Company Group for any or all of the Contemplated Projects, and the Company Group shall have no right to provide services with respect thereto unless such services are contemplated in a Contract between the Purchaser and the Company Group. Except as set forth on Schedule 4.15(b)(ii), no Related Party (other than members of the Company Group) has any right, title or interest in, to or applicable under any of the propertiesLeases, assets and, to the Knowledge of the Company and its Subsidiary, no other party is in default thereof and no party to any Lease has exercised any termination rights with respect thereto. (d) The Leased Real Property comprises all of the material real property (i) used, occupied or rights (of any kind and whether tangible or intangible or real or personal) used in, held for use in connection with or relating to the ordinary operation of the business of the Company Group. As and (ii) necessary for the current operation of the Effective Datebusiness of the Company. (e) The Company and its Subsidiary has good and valid title to, or, in the case of real property and leased properties and assets, valid leasehold interests in, all of the assets contemplated by this Section 4.15(b) are its material tangible properties and assets, real, personal and mixed, used or held for use in its business, free and clear of all liens and have been maintained any Liens, except as reflected in the ordinary course of business, are in good operating condition, subject to normal wear Latest Balance Sheet and tear, and are suitable except for the purposes for which they are currently usedPermitted Liens.